EXHIBIT 10.30
(Medical Space)
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into this 16th day
of September, 1996, by and between Landlord and Tenant.
W I T N E S S E T H :
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1. CERTAIN DEFINITIONS. For purposes of this Lease, the following
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terms shall have the meanings hereinafter ascribed thereto:
(a) LANDLORD: PAVILION PARTNERS, L.P.
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(b) LANDLORD'S ADDRESS: LANDLORD'S ADDRESS FOR PAYMENTS:
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0000 Xxxx Xxxxx Xxxxx 0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(c) TENANT: QUALITY DIAGNOSTIC CARDIOLOGY SERVICES, INC.
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(d) TENANT'S ADDRESS:
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0000 XXXX XXXXX XXXXX
XXXXXXX, XX 00000
(e) BUILDING ADDRESS:
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0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(f) SUITE NUMBER: 370
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(g) RENTABLE FLOOR AREA OF THE DEMISED PREMISES: Approximately 2,093
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rentable square feet (representing 1,842 usable square feet which
shall be subject to adjustment in accordance with the Tenant
Improvement Agreement attached hereto as EXHIBIT "D").
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(h) XXXXXXXX XXXXX XXXX XX XXX XXXXXXXX (0000 AND 1150): 237,715
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rentable square feet.
(i) TENANT'S PERCENTAGE SHARE: The proportion that the Rentable Floor
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Area of the Demised Premises bears to ninety-five percent (95%)
of the Rentable Floor Area of the Buildings or the average
percentage of the Rentable Floor Area of the Buildings actually
leased in the Project if such average is greater than ninety-five
percent (95%) of the Rentable Floor Area of the Buildings. The
average percentage of the Rentable Area of the Buildings actually
leased shall be determined by adding together the total leased
space on the last day of each month during the calendar year in
question and dividing such sum by twelve (12).
(j) LEASE TERM. Commencing on the Commencement Date and terminating
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on March 31, 2001.
(k) BASE RENTAL: $18.36 per square foot of Rentable Floor Area of
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Demised Premises per year.
(l) COMMENCEMENT DATE: The earlier of (x) November 1, 1996, (y) the
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date upon which Tenant takes possession and occupies the Demised
Premises or (z) the date upon which the Demised Premises are
ready for occupancy and delivered to Tenant, subject to
adjustment pursuant to the Tenant Improvement Agreement attached
hereto as EXHIBIT "D".
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(m) RENTAL COMMENCEMENT DATE: The Commencement Date, provided that if
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the Demised Premises are not ready for occupancy by the date set
forth in Article 1(l)(x) above, due to delays not caused by
Tenant or its employees, agents or contractors, the Rental
Commencement Date shall be postponed one (1) day for each day of
such delay.
(n) TENANT IMPROVEMENT ALLOWANCE: See Special Stipulation #1, Exhibit
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G, page G-1.
(o) RENTAL DEPOSIT: 3,202.29 $
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(p) BROKER(S): Xxxxxxxx-Xxxxx Realty Corporation
--------- representing Tenant and
Xxxxxxx & Xxxx, Inc. representing Landlord
(q) INCREASE MULTIPLIER: The term "Increase Multiplier" shall mean a
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fraction:
THE NUMERATOR: The Consumer Price Index, as herein defined,
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published for the month which is three (3) months prior to the
month in which the Increase Multiplier is being calculated.
THE DENOMINATOR: The Consumer Price Index published for the month
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which is fifteen (15) months prior to the month in which the
Increase Multiplier is being calculated, provided however, in no
event shall the Increase Multiplier be less than 1.00.
(r) CONSUMER PRICE INDEX: The revised Consumer Price Index, Atlanta,
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Georgia, All Items (1982-1984=100), issued by the U.S. Department
of Labor, Bureau of Labor Statistics. If the Consumer Price Index
published by the U.S. Bureau of Labor Statistics is discontinued,
another index recognized as authoritative shall in good faith be
substituted by Landlord.
2. LEASE OF PREMISES: Landlord, in consideration of the covenants
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and agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building known as 1100 Lake Xxxxx Drive (the "Building") located on that
certain tract of land, more particularly described on EXHIBIT "A" attached
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hereto and by this reference made a part hereof (the "Land"), which Demised
Premises are outlined on the floor plan attached hereto as EXHIBIT "B" and by
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this reference made a part hereof, with no easement for light, view or air
included in the Demised Premises or being granted hereunder. The "Project" is
comprised of the Building, the other building located on the Land, known as 0000
Xxxx Xxxxx Xxxxx (the "Other Building"; the Building and the Other Building
being hereinafter sometimes collectively called the "Buildings"), the Land, the
Buildings' parking facilities, any walkways, covered walkways, tunnels or other
means of access to the Building and the Buildings' parking facilities, all
common areas, including any lobbies or plazas, and any other improvements or
landscaping now or hereafter located on the Land. No rights to any parking
spaces are granted under this Lease; however, Tenant and Tenant's employees,
invitees and licensees shall be entitled to use, on a non-exclusive basis in
common with other tenants of the Building or adjacent buildings, the surface
parking facilities located from time to time adjacent to the Building and owned
by Landlord. Such use of the parking facilities shall be subject to any and all
rules and regulations established by Landlord with respect to the parking
facilities. Landlord, at Landlord's sole discretion and upon completion of a
parking deck, with ninety (90) days prior written notice, may charge parking
fees for deck parking at rates commensurate with those charged by comparable
office buildings with parking decks in the area, and Tenant and Tenant's
invitees and licensees shall be required to pay such fees, provided that surface
parking shall remain free of charge for Tenants, and invitees and licensees of
Tenant. Anything to the contrary in this Lease notwithstanding, Landlord
reserves the right and privilege to, from time to time, alter, increase and
reduce the location, structure and layout of the Project, including, but not
limited to, the parking areas and other common areas.
3. TERM. The term of this Lease (the "Lease Term") shall commence on
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the Commencement Date, and, unless sooner terminated as provided in this Lease,
shall end on the expiration of the period designated
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in Article 1(j) above. Promptly after the Commencement Date, Landlord shall send
to Tenant a Tenant Acceptance Agreement in the form of EXHIBIT "C" attached
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hereto and by this reference made a part hereof, specifying the Commencement
Date, the Rental Commencement Date, the date of expiration of the Lease Term in
accordance with Article 1(j) above and certain other matters as therein set
forth.
4. POSSESSION. The obligations of Landlord and Tenant with respect
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to the initial leasehold improvements to the Demised Premises are set forth in
the Tenant Improvement Agreement attached hereto as EXHIBIT "D" and by this
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reference made a part hereof. Tenant agrees to comply with all of the terms and
provisions of the Tenant Improvement Agreement. If, for any reason whatsoever,
the Demised Premises are not substantially completed by the Commencement Date,
or if Landlord, for any reason whatsoever, cannot deliver possession of the
Demised Premises to Tenant on the Commencement Date, this Lease shall not be
void or voidable, nor shall Landlord be liable to Tenant for any resulting loss
or damages. No delay in delivery of possession shall operate to relieve Tenant
of Tenant's obligations to Landlord, except where such delay results in an
adjustment of the Commencement Date and the Rental Commencement Date pursuant to
the Tenant Improvement Agreement. Landlord shall be deemed to have delivered
possession of the Demised Premises for Tenant's occupancy on the date upon which
Landlord has notified Tenant that the "Work", as that term is defined in the
Tenant Improvement Agreement, is substantially complete, subject only to
completion of items customarily classified as "punchlist items" in the
construction industry and delays or incomplete items caused by Tenant (such date
hereinafter referred to as the "Occupancy Date"). Within ten (10) days after
the Occupancy Date, Tenant shall execute and deliver to Landlord a Tenant
Acceptance Agreement in the form attached hereto as EXHIBIT "C". Tenant may
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state in such Tenant Acceptance Agreement any defects in the Demised Premises
remaining to be repaired or completed by Landlord ("Punchlist Items"), provided,
however, that acceptance by Landlord of the Tenant Acceptance Agreement with a
statement of Punchlist Items shall not constitute the agreement of Landlord to
repair or complete any Punchlist Items not included in the "Working Drawings,"
as that term is defined in the Tenant Improvement Agreement. Upon the earlier
of delivery of the Tenant Acceptance Agreement by Tenant or occupancy of the
Demised Premises by Tenant, Tenant shall be deemed to have waived objection to
any defects not enumerated in a Tenant Acceptance Agreement, except for latent
defects not discoverable by reasonable diligence of Tenant and of which Tenant
gives Landlord written notice within one (1) year after the Occupancy Date.
Tenant shall be deemed to have waived objection to any defects of any nature if
a Tenant Acceptance Agreement is not executed and delivered within ten (10) days
after the Occupancy Date.
5. BASE RENTAL.
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(a) Tenant covenants and agrees to pay to Landlord during the Lease Term
the amounts specified in Article 1(k) (as adjusted from time to time, the "Base
Rental") as base rent for the Premises. The Base Rental shall be paid in equal
monthly installments in advance, without demand, deduction or set off, on the
first (1st) day of each and every calendar month during the Lease Term. A
prorated monthly installment shall be paid in advance on the Rental Commencement
Date for any fraction of a month if the Rental Commencement Date occurs on any
day other than the first day of any month and on the first day of the final
month of the Lease Term for any fraction of a month if the Lease Term shall
expire or terminate on any day other than the last day of any month.
(b) The Base Rental for the first year of the Lease Term is set forth
in Article 1(k) above. On each anniversary of the Commencement Date, the Base
Rental shall be increased to an amount equal to the product of: (i) the amount
of Base Rental for the previous calendar year (or portion thereof adjusted to
reflect an annual rental) multiplied by (ii) the Increase Multiplier.
(c) Tenant covenants and agrees to pay to Landlord during the Lease
Term such sums as are referred to herein as "Additional Rental" when due,
without demand, deduction or set off. As used herein, the term "Rent" shall
mean Base Rental, Additional Rental, and any other amounts due from Tenant
hereunder. Any sums payable to Landlord by Tenant hereunder shall be deemed
Additional Rental, and Landlord shall have all of the remedies upon default as
it does for failure to pay Base Rental.
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6. RENTAL DEPOSIT. Landlord acknowledges that it has received from
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Tenant the amount specified in Article 1(o) above (the "Rental Deposit"), which
sum shall be retained by Landlord, without obligation for interest, as security
for the performance of Tenant's covenants and obligations under this Lease.
Landlord shall have no obligation to segregate such Rental Deposit from any
other funds of Landlord. The Rental Deposit shall be returned to Tenant within
thirty (30) days after the expiration of the Lease Term, if Tenant has fully
performed its obligations hereunder. Landlord shall have the right to apply any
part of said Rental Deposit to cure any default of Tenant and if Landlord does
so, Tenant shall upon demand deposit with Landlord the amount so applied so that
Landlord shall have the full Rental Deposit on hand at all times during the
Lease Term. If there is a sale or lease of the Building subject to this Lease,
Landlord shall transfer the Rental Deposit to the vendee or lessee, and Landlord
shall be released from all liability for the return of such Rental Deposit.
Tenant shall look solely to the successor Landlord for the return of said Rental
Deposit. This provision shall apply to every transfer or assignment made of the
Rental Deposit to a successor Landlord. The Rental Deposit shall not be
assigned or encumbered by Tenant without the prior consent of Landlord and any
such unapproved assignment or encumbrance shall be void.
7. ADDITIONAL RENTAL. Tenant shall pay, as Additional Rental, Tenant's
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Percentage Share of the amount, if any, by which Operating Expenses (as
hereinafter defined) for any calendar year exceed $1,545,147.50 ($6.50/rentable
square foot of the Buildings). The Additional Rental payable pursuant to this
paragraph shall be determined, and paid in accordance with the following
procedures:
(i) During each December of the Lease Term, or as soon thereafter as
practicable, Landlord shall give Tenant written notice of its estimate of
Additional Rental payable under this Article 7 for the ensuing calendar year.
On or before the first day of each month during the ensuing calendar year,
Tenant shall pay to Landlord one-twelfth (1/12) of such estimated amounts
together with the Base Rental, provided that if such notice is not given in
December, Tenant shall continue to pay such Additional Rental during the ensuing
calendar year on the basis of the amounts payable during the calendar year just
ended, until the month after such notice is given.
(ii) As soon as practicable after the close of each calendar year
during the Lease Term, Landlord shall deliver to Tenant a statement of the
adjustments to be made for the calendar year just ended. Such statement shall be
final and binding upon Landlord and Tenant absent manifest error. If on the
basis of such statement Tenant's Percentage Share of the actual increase in
Operating Expenses for such calendar year is an amount that is less than the
estimated payments actually made by Tenant for such calendar year, Landlord
shall credit such excess to the next payments of Additional Rental coming due.
If on the basis of such statement Tenant's Percentage Share of the actual
increase in Operating Expenses for such calendar year is an amount greater that
the estimated payments actually made by Tenant, Tenant shall pay as Additional
Rental the deficiency to Landlord within thirty (30) days after delivery of the
statement.
(iii) If this Lease shall commence, expire or terminate on a day other
than the last day of a calendar year, the amount of Additional Rental payable
during the first or final calendar year of the Lease Term, as the case may be,
shall be prorated based on the actual number of days of the Lease Term during
such calendar year. The expiration or termination of this Lease shall not
affect the obligations of Landlord and Tenant to be performed after such
expiration or termination, pursuant to this Article 7.
8. OPERATING EXPENSES. For purposes of this Lease, "Operating Expenses"
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shall mean all costs and expenses of the ownership operation, maintenance,
repair, ad valorem taxes, management, and security of the Project of every kind
and nature (including, without limitation, all amounts, including interest
thereon if such amounts are borrowed, spent by Landlord to reduce Operating
Expenses, comply with government regulations, promote safety or maintain the
status of the Project, calculated on an accrual basis. Operating Expenses shall
specifically include an annual replacement reserve ("Annual Replacement
Reserve"). For the calendar year 1995, the Annual Replacement Reserve shall be
$142,629.00 ($.60/rentable square foot of the Buildings). Each calendar year
thereafter the Annual Replacement Reserve shall be increased by the Increase
Multiplier. Operating Expenses shall not include (i) depreciation on the
Buildings and personal property, (ii) Tenant Costs (as defined in
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the Tenant Improvement Agreement), (iii) payments by Landlord of interest and
principal on any mortgage secured by the Project or any portion thereof, (iv)
the cost of special services rendered to a particular tenant of the Buildings,
which are paid or reimbursed by such tenant, and (v) leasing commissions. If the
average occupancy level was less than ninety five percent (95%) of the total
Rentable Floor Area of the Buildings during a calendar year, the Operating
Expenses for that calendar year shall be adjusted to an amount equal to
Landlord's computation of Operating Expenses had ninety-five percent (95%) of
the total Rentable Floor Area of the Buildings been occupied, and the amount so
computed shall be deemed to be "Operating Expenses" for the purpose of computing
Additional Rental.
9. SERVICES BY LANDLORD. Landlord agrees to provide to Tenant the
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following services:
(a) General cleaning and janitorial service required as a result of
normal, prudent use of the Demised Premises and only on Mondays through Fridays,
inclusive, with New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day and such other holidays which are observed
locally by national banks (herein collectively called the "Holidays") excepted.
(b) Heating and air-conditioning service daily on Monday through Fridays,
inclusive, with Holidays excepted, from 8:00 A.M. to 6:00 P.M. and on Saturdays,
if not a Holiday, from 8:00 A.M. to 1:00 P.M. Landlord reserves the right to
prohibit the use of machines and equipment that generate excessive heat in their
operation. Should Tenant desire either heating or air-conditioning at times
when such services are not furnished by Landlord under the terms of this Lease,
Landlord will furnish such services as requested by Tenant upon not less than 24
hours notice from Tenant, at Tenant's expense and at such hourly charge as is
from time to time determined by Landlord. Payments for such additional services
shall be deemed Additional Rental due from Tenant and shall be due and payable
on demand;
(c) Elevator service daily on Mondays through Fridays, inclusive, with
Holidays excepted, and 8:00 A.M. to 6:00 P.M. and on Saturdays, if not a
Holiday, from 8:00 A.M. to 1:00 P.M. At least one elevator shall be operative
at all other hours; and
(d) Electric current for lighting and reasonable facilities for furnishing
usual and normal electric power for medical office space. Tenant shall not,
without Landlord's prior written consent, use any equipment, including,
diagnostic equipment, X-ray machines, or any other machines which use electric
current in excess of 110 volts, which will increase the amount of electricity
ordinarily furnished for the use of the Premises as medical office space or
which requires clean circuits or other special distribution circuits.
Landlord's consent for Tenant's use of such equipment shall be conditioned upon
Tenant and Landlord agreeing upon the amount Tenant shall pay each month for
increased electrical consumption.
(e) Water shall be provided to the Demised Premises in an amount
sufficient for private toilets and for hand washing. The cost of any water used
in excess of such amount shall be reimbursed to Landlord on demand as Additional
Rental, with the amount and cost of such excess determined by Landlord in its
reasonable discretion.
(f) Landlord reserves the right to install separate metering devices, at
Tenant's expense, and to charge Tenant for the cost of all excess or after-hours
use of services.
10. TENANT TAXES. Tenant shall pay promptly when due all taxes directly
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or indirectly imposed or assessed upon Tenant's gross sales, business
operations, machinery, equipment, trade fixtures and other personal property or
assets, whether such taxes are assessed against Tenant, Landlord or the Project.
In the event that such taxes are imposed or assessed against Landlord or the
Project, Landlord shall furnish Tenant with all applicable tax bills, public
charges and other assessments or impositions and Tenant shall forthwith pay the
same either directly to the taxing authority or, at Landlord's option, to
Landlord.
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11. PAYMENTS. All payments of Rent and other payments to be made to
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Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or
delivered to Landlord's Address for payments designated in Article 1(b) above or
at such other place as Landlord may designate from time to time in writing. If
mailed, all payments shall be mailed in sufficient time and with adequate
postage thereon to be received in Landlord's account by no later than the due
date for such payment. Tenant agrees to pay to Landlord Fifty Dollars ($50.00)
for each check presented to Landlord in payment of any obligation of Tenant
which is not paid by the bank on which it is drawn, together with interest from
and after the due date for such payment at the rate of eighteen percent (18%)
per annum on the amount due.
12. LATE CHARGES. Any Rent or other amounts payable to Landlord under
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this Lease, if not paid by the fifth day of the month for which such Rent is
due, or by the due date specified on any invoices from Landlord for any other
amounts payable hereunder, shall incur a late charge of Fifty Dollars ($50.00)
for Landlord's administrative expense in processing such delinquent payment and
in addition thereto shall bear interest at the rate of eighteen percent (18%)
per annum from and after the due date for such payment. Notwithstanding
anything to the contrary contained in this Lease, in no event shall the rate of
interest payable on any amount due under this Lease exceed the legal limits for
such interest enforceable under applicable law.
13. USE RULES.
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(a) The Demised Premises shall be used for executive, general
administrative and office space purposes and no other purposes and in accordance
with all applicable laws, ordinances, rules and regulations of governmental
authorities and the Rules and Regulations attached hereto as EXHIBIT "E" and the
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Building Moving Policy attached hereto as EXHIBIT "F" and made a part hereof.
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Tenant covenants and agrees that it will, at its expense, comply with all laws,
ordinances, orders, directions, requirements, rules and regulations of all
governmental authorities (including Federal, State, county and municipal
authorities), now in force or which may hereafter be in force, which shall
impose any duty upon Landlord or Tenant with respect to the use, occupancy or
alteration of the Demised Premises (including, without limitation, the Americans
With Disabilities Act ["ADA"]) or any unique aspect of Tenant's use, occupancy
or alteration thereof, and of all insurance bodies applicable to the Demised
Premises or to the Tenant's use, occupancy or alteration thereof. Tenant
covenants and agrees to abide by the Rules and Regulations and the Building
Moving Policy in all respects as now set forth and attached hereto or as
hereafter promulgated by Landlord. Landlord shall have the right at all times
during the Lease Term to publish and promulgate and thereafter enforce such
rules and regulations or changes in the existing Rules and Regulations as it may
reasonably deem necessary in its sole discretion to protect the tenantability,
safety, operation, and welfare of the Demised Premises and the Project.
(b) No rights to any parking spaces are granted under this Lease; however,
Tenant and Tenant's employees, invitees and licensees shall be entitled to use,
on a non-exclusive basis in common with other tenants of the Building or
adjacent buildings, the parking facilities located from time to time adjacent to
the Building and owned by Landlord. Such use of the parking facilities shall be
subject to any and all rules and regulations established by Landlord with
respect to the parking facilities. Landlord, at Landlord's sole discretion and
upon completion of a parking deck, with ninety (90) days prior written notice,
may charge parking fees for deck parking at rates commensurate with those
charged by comparable medical office buildings with parking decks in the area,
provided that surface parking shall remain free of charge for Tenant and
Tenant's invitees and licensees.
14. ALTERATIONS. Except for any initial improvement of the Demised
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Premises pursuant to Exhibit "D", which shall be governed by the provisions of
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said Exhibit "D", Tenant shall not make, suffer or permit to be made any
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alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent. Any such alterations, additions or improvements to
the Demised Premises consented to by Landlord shall be made by Landlord or under
Landlord's supervision for Tenant's account and Tenant shall reimburse Landlord
for all costs thereof (including a reasonable charge for Landlord's overhead),
as Rent, within ten (10) days after receipt of a statement. All such
alterations, additions and improvements, shall become Landlord's property at the
expiration or earlier termination of the Lease Term and shall remain on the
Demised Premises without compensation to Tenant unless Landlord
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elects by notice to Tenant to have Tenant remove such alterations, additions and
improvements, in which event, notwithstanding any contrary provisions respecting
such alterations, additions and improvements contained in Article 32 hereof,
Tenant shall promptly restore, at its sole cost and expense, the Demised
Premises to its condition prior to the installation of such alterations,
additions and improvements, normal wear and tear excepted.
15. REPAIRS.
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(a) Landlord shall maintain in good order and repair, subject to normal
wear and tear and subject to casualty and condemnation, the Building (excluding
the Demised Premises and other portions of the Building leased to other
tenants), the Building parking facilities, the public areas and the landscaped
areas. Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or negligence
of Tenant or its agents, contractors, employees, invitees, licensees, tenants or
assigns, shall be borne solely by Tenant and shall be deemed Rent hereunder and
shall be reimbursed by Tenant to Landlord upon demand. Landlord shall not be
required to make any repairs or improvements to the Demised Premises except
structural repairs necessary for safety and tenantability, the necessity for
which (i) Landlord is notified in writing by Tenant, and (ii) is not brought
about by any act or neglect of Tenant, its agents, employees or contractors,
licensees, or invitees.
(b) Tenant covenants and agrees that it will take good care of the Demised
Premises and all alterations, additions and improvements thereto and will keep
and maintain the same in good condition and repair, except for normal wear and
tear. Tenant shall at once report, in writing, to Landlord any defective or
dangerous condition known to Tenant. Landlord's liability with respect to any
defects, repairs or maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect. Landlord shall not be liable to
Tenant for damage to person or property caused by any latent defects in the
Building or the Demised Premises, defects in the cooling, heating, electric,
water, elevator or other apparatus or systems or by water discharged from
sprinkler systems, if any, in the Building or the Demised Premises, nor for the
theft, mysterious disappearance, or loss of the Building. To the fullest extent
permitted by law, Tenant hereby waives all rights to make repairs at the expense
of Landlord or in lieu thereof to vacate the Demised Premises as may be provided
by any law, statute or ordinance now or hereafter in effect. Landlord has no
obligation and has made no promise to alter, remodel, improve, repair, decorate
or paint the Demised Premises or any part thereof, except as specifically and
expressly herein set forth.
(c) Tenant shall at its own cost and expense keep and maintain the Demised
Premises and all parts thereof in good repair and tenantable condition and
indemnify Landlord against any loss, damage, or expense arising by reason of any
failure of Tenant so to keep the Demised Premises in good repair and tenantable
condition or due to any act or neglect of Tenant, its agents, employees,
contractors, invitees, or licensees. If Tenant fails to perform, or cause to be
performed, such maintenance and repairs, then at the option of Landlord, in its
sole discretion, any such maintenance or repair may be performed or caused to be
performed by Landlord and the cost and expense thereof shall be charged to
Tenant, and Tenant shall pay the amount thereof to Landlord on demand as
Additional Rental. Tenant shall not install X-ray machines or other equipment
which emits radiation in the Demised Premises without Landlord's approval, which
approval shall not be unreasonably withheld. Landlord's withholding of consent
shall not be unreasonable if, by way of illustration and not limitation,
adequate protection for the safety of people is not installed in connection with
such equipment. Tenant hereby accepts the risks of and all responsibility for
any injury or damage which may result from the operation or failure of operation
of any such X-ray equipment or other equipment which emits radiation. All
equipment owned or operated by Tenant must be installed and protected in a
manner satisfactory to Landlord and in compliance with all governmental
regulations. Tenant will be obligated to obtain and maintain at its expense any
permits, licenses or approvals required in connection with its use of the
Demised Premises or in connection with any equipment of Tenant in the Demised
Premises.
All repairs, replacements and clearing of stoppages from plumbing fixtures
within the Demised Premises, as well as repair or replacement of special or non-
standard electrical fixtures, lights and light bulbs within the
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Demised Premises (other than standard 2x4 lights), and the furnishing of toilet
paper and paper towels to toilets and sinks located within the Demised Premises
shall be at Tenant's expense.
(d) Tenant agrees to conform to Landlord's signage program for the
Building; however, all costs and expenses for any sign, sign installation,
removal and repair shall be paid by Tenant. Tenant shall obtain the written
approval of Landlord prior to placing and maintaining, or causing or permitting
to be placed and maintained, any sign, advertising matter or other thing of any
kind, on the exterior of the Demised Premises, or any decorating, lettering or
advertising matter on any exterior door to the Demised Premises. Tenant shall
not affix or attach anything to windows in the Demised Premises.
16. LANDLORD'S RIGHT TO ENTRY. Landlord shall retain duplicate keys to
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all doors of the Demised Premises, and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom; provided, however, that Landlord
shall, except in case of emergency, afford Tenant such prior notification of an
entry into the Demised Premises as shall be reasonably practicable under the
circumstances. Landlord shall be allowed to take into and through the Demised
Premises any and all materials that may be required to make such repairs,
additions, alterations or improvements. During such time as such work is being
carried on, in or about the Demised Premises, the Rent provided herein shall not
xxxxx, and Tenant waives any claim or cause of action against Landlord for
damages by reason of interruption of Tenant's business or loss of profits
therefrom because of the prosecution of any such work or any part thereof.
Tenant shall give written notice to Landlord at least thirty (30) days prior to
vacating the Demised Premises.
17. INSURANCE. Tenant shall procure at its expense and maintain
---------
throughout the Lease Term a policy or policies of commercial property insurance,
issued on an "all risks" basis insuring the full replacement cost of its
furniture, equipment, supplies and other property owned, leased, held or
possessed by it and contained in the Demised Premises, together with the excess
value of the improvements to the Demised Premises over the Tenant Improvement
Allowance (with a replacement cost endorsement sufficient to prevent Tenant from
becoming a co-insurer), and workmen's compensation insurance as required by
applicable law. Tenant shall also procure at its expense and maintain
throughout the Lease Term a policy or policies of commercial general liability
insurance, written on an occurrence basis and insuring Tenant, Landlord and any
other person designated by Landlord, against any and all liability for injury to
or death of a person or persons and for damage to property occasioned by or
arising out of any construction work being done on the Demised Premises, or
arising out of the condition, use or occupancy of the Demised Premises, or in
any way occasioned by or arising out of the activities of Tenant, its agents,
contractors, employees, guests or licensees in the Demised Premises, or other
portions of the Building or the Project, the limits of such policy or policies
to be in combined single limits for both damage to property and personal injury
and in amounts not less than Three Million Dollars ($3,000,000.00) for each
occurrence. Such insurance shall, in addition, extend to any liability of
Tenant arising out of the indemnities provided for in this Lease. Tenant shall
also carry such other types of insurance in form and amount which Landlord shall
reasonably deem to be prudent for Tenant to carry. All insurance policies
procured and maintained by Tenant pursuant to this Article 17 shall name
Landlord and any additional parties designated by Landlord as additional
insured, shall be carried with companies licensed to do business in the State of
Georgia reasonably satisfactory to Landlord and shall be non-cancelable and not
subject to material change except after twenty (20) days' written notice to
Landlord. Such policies or duly executed certificates of insurance with respect
thereto, accompanies by proof of payment of the premium therefor, shall be
delivered to Landlord prior to the Rental Commencement Date, and renewals of
such policies shall be delivered to Landlord at least thirty (30) days prior to
the expiration of each respective policy term.
18. WAIVER OF SUBROGATION. Landlord and Tenant shall each have included
---------------------
in all policies of commercial property insurance, and business interruption and
other property insurance respectively obtained by them covering the Demised
Premises, the Building and contents therein, a waiver by the insurer of all
right of
8
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and releases the other from
liability for, loss or damage to the extent such loss or damage is covered by
valid and collectable insurance in effect at the time of such loss or damage or
would be covered by the insurance required to be maintained under this Lease by
the party seeking recovery.
19. DEFAULT.
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(a) The following events shall be deemed to have events of default by
Tenant under this Lease: (i) Tenant shall fail to pay any installment of Rent
or any other chare or assessment against Tenant pursuant to the terms hereof
within five (5) days after the due date thereof; (ii) Tenant shall fail to
comply with any term, provision, covenant or warranty made under this Lease by
Tenant, other than the payment of the Rent or any other charge or assessment
payable by Tenant, and shall not cure such failure within forty-five (45) days
after notice thereof to Tenant; (iii) Tenant or any guarantor of this Lease
shall make a general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due, or shall file a
petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or
shall file a petition in any proceeding seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, or shall file an answer admitting,
or fail timely to contest the material allegations of a petition filed against
it in any such proceeding; (iv) a proceeding is commenced against Tenant or any
guarantor of this Lease seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, and such proceeding shall not have been
dismissed within fifteen (15) days after the commencement thereof; (v) a
receiver or trustee shall be appointed for the Demised Premises or for all or
substantially all of the assets of Tenant or of any guarantor of this Lease;
(vi) Tenant shall abandon or vacate all or any portion of the Demised Premises
or fail to take possession thereof as provided in this Lease; (vii) Tenant shall
do or permit to be done anything which crates a lien upon the Demised Premises
or the Project and such lien is not removed or discharged within fifteen (15)
days after the filing thereof; (viii) Tenant shall fail to return a properly
executed instrument to Landlord in accordance with the provisions of Article 27
hereof within the time period provided for such return following Landlord's
request for same as provided in Article 27; or (ix) Tenant shall fail to return
a properly executed estoppel certificate to Landlord in accordance with the
provisions of Article 28 hereof within the time period provided for such return
following Landlord's request for same as provided in Article 28.
(b) Upon the occurrence of any of the aforesaid events of default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever: (i) terminate this Lease, in
which event Tenant shall immediately surrender the Demised Premises to Landlord
and if Tenant fails to do so, Landlord my without prejudice to any other remedy
which it may have for possession or arrearages in Rent, enter upon and take
possession of the Demised Premises and expel or remove Tenant and any other
person who may be occupying said Demised Premises or any part thereof, by force,
if necessary, without being liable for prosecution or any claim of damages
therefor; Tenant hereby agreeing to pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Demised Premises on satisfactory terms or
otherwise; (ii) terminate Tenant's right of possession (but not this Lease) and
enter upon and take possession of the Demised Premises and expel or remove
Tenant and any other person who may be occupying said Demised Premises or any
part thereof, by entry (including the use of force, if necessary), dispossessory
suit or otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease, and without being liable for
prosecution or any claim of damages therefor and, if Landlord so elects, make
such alteration, redecorations and repairs as, in Landlord's judgment, may be
necessary to relet the Demised Premises, and Landlord may, but shall be under no
obligation to do so, relet the Demised Premises or any portion thereof in
Landlord's or Tenant's name, but for the account of Tenant, for such term or
terms (which may be for a term extending beyond the Lease Term) and at such
rental or rentals and upon such other terms as Landlord may deem advisable, with
or without advertisement, and by private negotiations, and receive the rent
therefor, Tenant hereby agreeing to pay to Landlord the deficiency, if any,
between all Rent reserved hereunder and the total rental applicable to the Lease
Term hereof obtained by Landlord
9
re-letting, and Tenant shall be liable for Landlord's expenses in redecorating
and restoring the Demised Premises and all costs incident to such re-letting,
including broker's commissions and lease assumptions, and in no event shall
Tenant be entitled to any rentals received by Landlord in excess of the amounts
due by Tenant hereunder; or (iii) enter upon the Demised Premises by force, if
necessary, without being liable for prosecution or any claim of damages
therefor, and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any expenses
including, without limitation, reasonable attorneys' fees which Landlord may
incur in thus effecting compliance with Tenant's obligations under this Lease
and Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by negligence of Landlord
or otherwise. If this Lease is terminated by Landlord as a result of the
occurrence of an event of default, Landlord may declare the entire amount of
Rent and other charges and assessments which in Landlord's reasonable
determination would become due and payable during the remainder of the Lease
Term (including, but not limited to, increases in Rent pursuant to Article 7
hereof), discounted to present value by using a discount factor of eight percent
(8%) per annum, to be due and payable immediately. Upon the acceleration of such
amounts, Tenant agrees to pay the same at once, together with all Rent and other
charges and assessments theretofore due, at Landlord's address as provided
herein; provided, however, that such payment shall not constitute a penalty or
forfeiture but shall constitute liquidated damages for Tenant's failure to
comply with the terms and provisions of this Lease (Landlord and Tenant agreeing
that Landlord's actual damages in such an event are impossible to ascertain and
that the amount set forth above is a reasonable estimate thereof). Upon making
the entire such payment, Tenant shall receive from Landlord all rents received
by Landlord from other tenants renting the Demised Premises or any portion
thereof during the Lease Term (with appropriate allocations of such rents in the
event such other tenants lease space in addition to the Demised Premises),
provided that the monies to which Tenant shall so become entitled shall in no
event exceed the entire amount actually paid by Tenant to Landlord pursuant to
the preceding sentence, less all of Landlord's costs and expenses (including,
without limitation, Landlord's expenses in redecorating and restoring the
Demised Premises and all costs incident to such reletting, including broker's
commissions and lease assumptions) incurred in connection with or in any way
related to the reletting of the Demised Premises.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit of
any other remedy herein provided or any other remedy provided by law or at
equity, nor shall pursuit of any remedy herein provided constitute an election
of remedies thereby excluding the later election of an alternate remedy, or a
forfeiture or waiver of any Rent or other charges and assessments payable by
Tenant and due to Landlord hereunder or of any damages accruing to Landlord by
reason of violation of any of the terms, covenants, warranties and provisions
herein contained. No reentry or taking possession of the Demised Premises by
Landlord or any other action taken by or on behalf of Landlord shall be
construed to be an acceptance of a surrender of this Lease or an election by
landlord to terminate this Lease unless written notice of such intention is
given to Tenant. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. In determining the amount of loss or
damage which Landlord may suffer by reason of termination of this Lease or the
deficiency arising by reason of any reletting of the Demised Premises by
Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses incurred
by Landlord in the enforcement of this Lease, including without limitation, the
fees of Landlord's attorneys as provided in Article 25 hereof.
20. WAVIER OF BREACH. No waiver of any breach of the covenants,
----------------
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach occurred.
21. ASSIGNMENT AND SUBLETTING. Tenant shall not, without prior written
-------------------------
consent of Landlord, assign this Lease or any interest herein or in the Demised
Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or
sublet the Demised Premises or any part thereof or permit the use of the Demised
Premises by any party other than Tenant. Consent to one or more such transfers
or subleases shall not destroy or waive this provision, and all subsequent
transfers and subleases shall likewise be made only upon obtaining the
10
prior written consent of Landlord. Without limiting the foregoing prohibition,
in no event shall Tenant assign this Lease or any interest herein, whether
directly, indirectly or by operation of law, or sublet the Demised Premises or
any part thereof or permit the use of the Demised Premises or any part thereof
by any party if such proposed assignment, subletting or use would contravene any
restrictive covenant (including any exclusive use) granted to any other tenant
of the Building or would contravene the provision of Article 13 of this Lease.
Subleasees, assignees or transferees of the Demised Premises for the balance of
the Lease Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated, as a principal and not as surety, for all liability to Landlord
arising under this Lease during the entire remaining Lease Term including any
extensions thereof, whether or not authorized herein. If Tenant is a partnership
or limited liability company, a withdrawal or change, whether voluntary,
involuntary or by operation of law, of partners or members owning a controlling
interest in the Tenant shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions. If Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or the
sale or transfer of a controlling interest in the capital stock of Tenant,
whether in a single transaction or in a series of transactions, shall be deemed
a voluntary assignment of this Lease and subject to the foregoing provisions.
Landlord may, as a prior condition to considering any request for consent to an
assignment or sublease, require Tenant to obtain and submit current financial
statements of any proposed subtenant or assignee and such other financial
documentation relative to the proposed subtenant or assignee as Landlord may
reasonably require. In the event Landlord consents to an assignment or sublease,
Tenant shall pay to the Landlord a fee to cover Landlord's accounting costs plus
any legal fees incurred by Landlord as a result of the assignment or sublease.
The consent of Landlord to any proposed assignment or sublease may be withheld
by Landlord in its sole and absolute discretion. Landlord may require an
additional security deposit from the assignee or subtenant as a condition of its
consent. Any consideration, in excess of the Rent and other charges and sums due
and payable by Tenant under this Lease, paid to Tenant by any assignee of this
Lease for its assignment, or by any sublessee under or in connection with its
sublease, or otherwise paid to Tenant by another party for use and occupancy of
the Demised Premises or any portion thereof, shall be promptly remitted by
Tenant to Landlord as additional rent hereunder and Tenant shall have no right
or claim thereto as against Landlord. No assignment of this Lease consented to
by Landlord shall be effective unless and until Landlord shall receive an
original assignment and assumption agreement, in form and substance satisfactory
to Landlord, signed by Tenant and Tenant's proposed assignee, whereby the
assignee assumes due performance of this Lease to be done and performed for the
balance of the then remaining Lease Term of this Lease. No subletting of the
Demised Premises, or any part thereof, shall be effective unless and until there
shall have been delivered to Landlord an agreement, in form and substance
satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby
the sublessee acknowledges the right of Landlord to continue or terminate any
sublease, in Landlord's sole discretion, upon termination of this Lease, and
such sublessee agrees to recognize and attorn to Landlord in the event that
Landlord elects under such circumstances to continue such sublease. Upon
Landlord's receipt of a request by Tenant to assign this Lease or any interest
herein or in the Demised Premises or to transfer or sublet the Demised Premises
or any part thereof or permit the use of the Demised Premises by any party other
than Tenant, Landlord shall have the right, at Landlord's option, to exercise in
writing any of the following options: (a) to terminate this Lease as to the
portion of the Demised Premises proposed to be assigned or sublet; (b) to
consent to the proposed assignment or sublease, subject to the other terms and
conditions set forth in this Article 21; or (c) to refuse to consent to the
proposed assignment or sublease, which refusal shall be deemed to have been
exercised unless Landlord gives Tenant written notice providing otherwise.
22. DESTRUCTION.
-----------
(a) If the Demised Premises are damaged by fire or other casualty, the same
shall be repaired or rebuilt as speedily as practical under the circumstances at
the expense of Landlord, unless this Lease is terminated as provided in this
Article 22, and during the period required for restoration, a just and
proportionate part of Base Rental shall be abated until the Demised Premises are
repaired or rebuilt.
(b) If (i) the Demised Premises or the Project are damaged to such an
extent that repairs cannot, in Landlord's judgment, be completed within one
hundred eighty (180) days after the date of the commencement of
11
repair of the casualty, or (ii) the Demised Premises or the Project are damaged
or destroyed as a result of a risk which is not insured under the insurance
policies required hereunder, or (iii) the Demised Premises are damaged or
destroyed during the last twelve (12) months of the Lease Term, or (iv) if the
Project is damaged in whole or in part (whether or not the Demised Premises are
damaged) to such an extent that the Project cannot, in Landlord's judgment, be
operated economically as an integral unit, then and in any such event Landlord
may at its option terminate this Lease by notice in writing to Tenant within
sixty (60) days after the day of such occurrence. If the Demised Premises are
damaged to such an extent that repairs cannot, in Landlord's judgment, be
completed within one hundred eighty (180) days after the date of the
commencement of repair of the casualty or if the Demised Premises are
substantially damaged during the last twelve (12) months of the Lease Term, then
in either such event Tenant may elect to terminate this Lease by notice in
writing to Landlord within fifteen (15) days after the date of such occurrence.
Unless Landlord or Tenant elects to terminate this Lease as hereinabove
provided, this Lease will remain in full force and effect and Landlord shall
repair such damage at its expense to the extent required under subparagraph (c)
below as expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to subparagraph (a)
above to repair or rebuild because of any damage or destruction, Landlord's
obligation shall be limited to the original Building and any other work or
improvements which were originally performed or installed at Landlord's expense
as described in Exhibit "D" hereto or with the proceeds of the Tenant
-----------
Improvement Allowance. If the cost of performing such repairs exceeds the
actual proceeds of insurance paid or payable to Landlord on account of such
casualty, or if Landlord's mortgagee or the lessor under a ground or underlying
lease shall require that any insurance proceeds from a casualty loss be paid to
it, Landlord may terminate this Lease unless Tenant, within fifteen (15) days
after demand therefor, deposits with Landlord a sum of money sufficient to pay
the difference between the cost of repair and the proceeds of the insurance
available to Landlord for such purpose.
(d) In no event shall Landlord be liable for any loss or damage substained
by Tenant by reason of casualties mentioned hereinabove or any other accidental
casualty. In no event shall Landlord be required to rebuild, repair, or replace
any tenant improvements or any personal property, equipment, or trade fixtures
which belong to Tenant.
(e) Any insurance which may be carried by Landlord or Tenant against loss
or damage to the Building or the Demised Premises shall be for the sole benefit
of the party carrying such insurance.
(f) If any such casualty stated in this Article 22 occurs, Landlord shall
not be liable to Tenant for inconvenience, annoyance, loss of profits, expenses,
or any other type of injury or damage resulting from the repair of any such
damage, or from any repair, modification, arranging, or rearranging of any
portion of the Demised Premises or any part or all of the Building or for
termination of this Lease as provided in this Article 22.
(g) Anything in this Article 22 to the contrary notwithstanding, for
purposes of this Article 22, Landlord shall not be obligated to commence any
repair or restoration unless and until insurance proceeds are actually received
by Landlord, and Landlord's restoration obligations shall be limited to the
extent of the insurance proceeds actually received by Landlord therefor and
which the holder of any mortgage or deed to secure debt encumbering any portion
of the Building, or the ground lessor under any ground lease affecting any
portion of the Building, permit Landlord to apply toward the restoration of the
Building.
23. LANDLORD'S LIEN. Landlord shall at all times have a valid first lien
---------------
upon all of the personal property of Tenant situated in the Demised Premises to
secure payment of Rent and other sums and charges due hereunder from Tenant to
Landlord and to secure the performance by Tenant of each and all of the
covenants, warranties, agreements and conditions hereof. Said personal property
shall not be removed from the Demised Premises without the consent of Landlord
until all arrearage in Rent and other charges as well as any and all other sums
of money due hereunder shall first have been paid and discharged and until this
Lease and all of the covenants, conditions, agreements and provision hereof have
been fully performed by Tenant. Tenant shall from time to time execute any
financing statements and other instruments necessary to perfect the security
interest granted herein. The lien herein granted may be foreclosed in the
manner and form provided by law for the
12
foreclosure of security instruments or chattel mortgages, or in any other manner
provided by law. This Lease is intended as and constitutes a security agreement
within the meaning of the Uniform Commercial Code of the State of Georgia.
24. NOT USED.
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25. ATTORNEY'S FEES AND HOMESTEAD. If any Rent or other debt owing by
-----------------------------
Tenant to Landlord hereunder is collected by or through an attorney-at-law,
Tenant agrees to pay an additional amount equal to fifteen percent (15%) of such
sum as attorneys' fees. If Landlord uses the services of any attorney in order
to secure compliance with any other provisions of this Lease, to recover damages
for any breach or default of any other provisions of this Lease, or to terminate
this Lease or evict Tenant, Tenant shall reimburse Landlord upon demand for any
and all attorneys' fees and expenses so incurred by Landlord. Tenant waives all
homestead rights and exemptions which it may have under any law as against any
obligation owing under this Lease, and assigns to Landlord its homestead and
exemptions to the extent necessary to secure payment and performance of its
covenants and agreements hereunder.
26. TIME. Time is of the essence of this Lease and whenever a certain day
----
is stated for payment or performance of any obligation of Tenant or Landlord,
the same enters into and becomes a part of the consideration hereof.
27. SUBORDINATION AND ATTORNMENT.
----------------------------
(a) Tenant agrees that this Lease and all rights of Tenant hereunder are
and shall be subject and subordinate to any ground or underlying lease which may
now or hereafter be in effect regarding the Project or any component thereof, to
any mortgage now or hereafter encumbering the Demised Premises or the Project or
any component thereof, to all advances made or hereafter to be made upon the
security of such mortgage, to all amendments, modifications, renewals,
consolidations, extensions and restatements of such mortgage, and to any
replacements and substitutions for such mortgage. The terms of this provision
shall be self-operative and no further instrument of subordination shall be
required. Tenant, however, upon request of any party in interest, shall execute
promptly such instrument or certificates as may be reasonably required to carry
out the intent hereof, whether said requirement is that of Landlord or any other
party in interest, including, without limitation, any mortgagee. Landlord is
hereby irrevocably vested with full power and authority as attorney-in-fact for
Tenant and in Tenant's name, place and stead, to subordinate Tenant's interest
under this Lease to the lien or security title of any mortgage and to any future
instrument amending, modifying, renewing, consolidating, extending, restating,
replacing or substituting any such mortgage.
(b) If any mortgagee or lessee under a ground or underlying lease elects
to have this Lease superior to its mortgage or ground lease and signifies its
election in the instrument creating its lien or lease or by separate recorded
instrument, then this Lease shall be superior to such mortgage or lease, as the
case may be. The term "mortgage", as used in this Lease, includes any deed to
secure debt, deed of trust or security deed and any other instrument creating a
lien in connection with any other method of financing or refinancing. The term
"mortgagee", as used in this Lease, refers to the holder(s) of the indebtedness
secured by a mortgage.
(c) In the event any proceedings are brought for the foreclosure of, or in
the event of exercise of the power of sale under, any mortgage covering the
Demised Premises or the Project, or in the event the interests of Landlord under
this Lease shall be transferred by reason of deed in lieu of foreclosure or
other legal proceedings, or in the event of termination of any lease under which
Landlord may hold title, Tenant shall, at the option of the transferee or
purchase at foreclosure or under power of sale, or the lessor of the Landlord
upon such lease termination, as the case may be (sometimes hereinafter call
"such person"), attorn to such person and shall recognize and be bound and
obligated hereunder to such person as the Landlord under this Lease; provided,
however, that no such person shall be (i) bound by any payment of Rent for more
than one (1) month in advance, except prepayments in the nature of security for
the performance by Tenant of its obligations under this Lease
13
(and then only if such prepayments have been deposited with and are under the
control of such person); (ii) bound by any amendment or modification of this
Lease made without the express written consent of the mortgagee or lessor of the
Landlord, as the case may be; (iii) obligated to cure any defaults under this
Lease of any prior landlord (including Landlord); (iv) liable for any act or
omission of any prior landlord (including Landlord); (v) subject to any offsets
or defenses which Tenant might have against any prior landlord (including
Landlord); or (vi) bound by any warranty or representation of any prior landlord
(including Landlord) relating to work performed by any prior landlord (including
Landlord) under this Lease. Tenant agrees to execute any attornment agreement
not in conflict herewith requested by Landlord, the mortgagee or such person.
Tenant's obligation to attorn to such person shall survive the exercise of any
such power of sale, foreclosure or other proceeding. Tenant agrees that the
institution of any suit, action or other proceeding by any mortgagee to realize
on Landlord's interest in the Demised Premises or the Project, or any portion
thereof pursuant to the powers granted to a mortgagee under its mortgage, shall
not, by operation of law or otherwise, result in the cancellation or termination
of the obligations of Tenant hereunder. Landlord and Tenant agree that
notwithstanding that this Lease is expressly subject and subordinate to any
mortgages, any mortgagee, its successors and assigns, or other holder of a
mortgage or of a note secured thereby, may sell the Demised Premises or the
Project, or any portion thereof in the manner provided in the mortgage and may,
at the option of such mortgagee, its successors and assigns, or other holder of
the mortgage or note secured thereby, make such sale of the Demised Premises or
Project subject to this Lease.
28. ESTOPPEL CERTIFICATES. Within ten (10) days after request therefor
---------------------
by Landlord, Tenant agrees to execute and deliver to Landlord in recordable form
an estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Demise Premises or the Project or
any part thereof, certifying (if such be the case) that this Lease is unmodified
and is in full force and effect (and if there have been modifications, that the
same is in full force and effect as modified and stating said modifications);
that there are no defenses or offsets against the enforcement thereof or stating
those claimed by tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information as
may reasonably be required by such mortgagee, proposed mortgagee, assignee,
purchaser or Landlord. Any such certificate may be relied upon by Landlord, any
mortgagee, proposed mortgagee, assignee, purchaser and any other party to whom
such certificate is addressed.
29. NO ESTATE. This Lease shall create the relationship of landlord and
---------
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant except as herein provided.
30. CUMULATIVE RIGHTS. All rights, power and privilege conferred
-----------------
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. HOLDING OVER. If Tenant remains in possession after expiration or
------------
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be double the amount of Rent (including any adjustments as provided herein)
payable for the last full calendar month of the Lease Term including renewals or
extensions. The inclusion of the preceding sentence in this Lease shall not be
construed as Landlord's consent for Tenant to hold over.
32. SURRENDER OF PREMISES. Upon the expiration or other termination of
---------------------
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, reasonable wear and tear
only excepted. If Tenant is not then in default, Tenant shall removal all
personalty and equipment not attached to the Demised Premises which it has
placed upon the Demised Premises and which Tenant is entitled to remove in
accordance with the provisions of this Lease, and Tenant shall restore the
Demised Premises to the condition immediately preceding the time of placement
thereof. If Tenant shall fail or refuse to remove all of Tenant's
14
effects, personalty and equipment from the Demised Premises upon the expiration
or termination of this Lease for any cause whatsoever or upon Tenant being
dispossessed by process of law or otherwise, such effects, personalty and
equipment shall be deemed conclusively to be abandoned and may be appropriated,
sold, store, destroyed or otherwise disposed of by Landlord without written
notice to Tenant or any other party and without obligation to account for them.
Tenant shall pay Landlord on demand any and all expenses incurred by Landlord in
the removal of such property, including, without limitation, the cost of
repairing any damage to the Building or Project caused by the removal of such
property and storage charges (if Landlord elects to store such property). The
covenants and conditions of this Article 32 shall survive any expiration or
termination of this Lease.
33. NOTICES. All notices required or permitted to be given hereunder
-------
shall be in writing and shall be deemed to have been fully given, whether
actually received or not, when delivered in person, or deposited with an
overnight commercial courier, or deposited, postage prepaid, in the United
States Mail, certified, return receipt requested, and addressed to Landlord or
Tenant at their respective address set forth hereinabove or at such other
address as either party shall have theretofore given to the other by notice as
herein provided. Tenant hereby designates and appoints as its agent to receive
notice of all distraint proceedings and all other notices required under this
Lease, the person in charge of the Demised Premises at the time said notice is
given or occupying said Demised Premises at said time; and, if no person is in
charge of or occupying the said Demised Premises, then such service or notice
may be made by attaching the same, in lieu of mailing, on the main entrance to
the Demised Premises.
34. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal property brought
------------------------------------
into the Demised Premises by Tenant, or Tenant's employees, agents, or business
visitors, shall be at the risk of Tenant only, and Landlord shall not be liable
for theft thereof or any damage thereto occasioned by any act of co-tenants,
occupants, invitees or other users of the Building or any other person.
Landlord shall not at any time be liable for damage to any property in or upon
the Demised Premises, which results from gas, smoke, water, rain, ice or snow
which issues or leaks from or forms upon any part of the Building or from the
pipes or plumbing work of the same, or from any other place whatsoever.
35. EMINENT DOMAIN.
--------------
(a) If all or part of the Demised Premises shall be taken for any public
or quasi-public use by virtue of the exercise of the power of eminent domain or
by private purchase in lieu thereof, this Lease shall terminate as to the part
so taken as of the date of taking, and, in the case of a partial taking,
Landlord shall have the right to terminate this Lease as to the balance of the
Demised Premises by written notice to Tenant if, in Landlord's judgment, the
taking would prevent or materially impair the use of the Project or the Demised
Premises or if an adequate award is not made available to Landlord for
restoration. If title to so much of the Project is taken that a reasonable
amount of reconstruction thereof will not in Landlord's sole discretion result
in the Building being a practical improvement and reasonably suitable for use
for the purpose for which it is designed, then this Lease shall terminate on the
date that the condemning authority actually takes possession of the part so
condemned or purchased.
(b) If this Lease is terminated under the provisions of this Article 35,
Rent shall be apportioned and adjusted as of the date of termination. Tenant
shall have no claim against Landlord or against the condemning authority for the
value of any leasehold estate or for the value of the unexpired Lease Term
provided that the foregoing shall not preclude any claim that Tenant may have
against the condemning authority for the unamortized cost of leasehold
improvements, to the extent the same were installed at Tenant's expense (and not
with the proceeds of the Tenant Improvement Allowance), or for loss of business,
moving expenses or other consequential damages, in accordance with subparagraph
(d) below.
(c) If there is a partial taking of the Project and this Lease is not
thereupon terminated under the provisions of this Article 35, then this Lease
shall remain in full force and effect, and Landlord shall, within a reasonable
time thereafter, repair or reconstruct the remaining portion of the Building to
the extent necessary to
15
make the same a complete architectural unit; provided, that in complying with
its obligations hereunder, Landlord shall not be required to expend more than
the net proceeds of the condemnation award which are paid to Landlord, to the
extent the holder of any mortgage or ground lessor under any ground lease
permits such award to be applied to restoration. Upon any such partial taking,
Landlord shall have the right to reduce the rent-stop figure described in
Article 7 hereof by an amount equal to the product of (x) the amount of tax
savings arising from such partial taking, as determined by Landlord in its sole
but reasonable discretion, divided by the number of square feet of Rentable
Floor Area of the Building, multiplied by (y) the number of square feet of
Rentable Floor Area of the Demised Premises.
(d) All compensation awarded or paid to Landlord upon a total or partial
taking of the Demised Premises or the Project shall belong to and be the
property of Landlord without any participation by Tenant. Nothing herein shall
be construed to preclude Tenant from prosecuting any claim directly against the
condemning authority for loss of business, for damage to, and cost of removal
of, trade fixtures, furniture and other personal property belonging to Tenant,
and for the unamortized cost of leasehold improvements to the extent the same
were installed at Tenant's expense (and not with the proceeds of the Tenant
Improvement Allowance); provided, however, that no such claim shall diminish or
adversely affect Landlord's award.
(e) Notwithstanding anything to the contrary contained in this Article 35,
if, during the Lease Term, the use or occupancy of any part of the Project or
the Demised Premises shall be taken or appropriated temporarily for any public
or quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, this Lease shall be and remain unaffected by such
taking or appropriation and Tenant shall continue to pay in full all Rent
payable hereunder by Tenant during the Lease Term. In the event of any such
temporary appropriation or taking, tenant shall be entitled to receive that
portion of any award which represents compensation for the loss of use or
occupancy of the Demised Premises during the Lease Term, and Landlord shall be
entitled to receive that portion of any award which represents the cost of
restoration and compensation for the loss of use or occupancy of the Demised
Premises after the end of the Lease Term.
36. PARTIES. The term "Landlord", as used in this Lease, shall include
-------
Landlord and its successors and assigns. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises, Landlord's
obligations to Tenant hereunder shall cease and terminate, and Tenant shall look
only and solely to Landlord's assignee or transferee for performance thereof.
37. LIABILITY OF TENANT. Tenant hereby indemnifies Landlord from and
-------------------
agrees to hold Landlord harmless against, any and all liability, loss, cost,
damage or expense, including, without limitation, court costs and reasonable
attorneys' fees, imposed on Landlord by any person whomsoever, caused in whole
or in part by any act or omission of Tenant, or any of its employees,
contractors, servants, agents, subtenants, assignees, representatives or
invitees, or otherwise occurring in connection with any default of Tenant
hereunder. The provisions of this Article 37 shall survive any termination of
this Lease.
38. RELOCATION OF THE PREMISES. Landlord reserves the right at any time
--------------------------
or from time to time, at its option and upon giving not less than thirty (30)
days' prior written notice to Tenant, to transfer and remove Tenant from the
Demised Premises herein specified to any other available rooms and offices in
the Project (or other building in the development of which the Building is a
part). Landlord shall bear the expense of said removal together with the
reasonable expense of replacement business cards and stationery and the expense
of any necessary renovation or alterations to said substituted space, as
calculated by Landlord. If Landlord exercises
16
such option, then the substituted space shall for all purposes hereof be deemed
to be and to constitute the Demised Premises under this Lease and all terms,
conditions, covenants, warranties, agreements and provisions of this Lease
including but not limited to the same Base Rental Rate per square foot of
Rentable Floor Area shall continue in full force and effect and shall apply to
the substituted space. Tenant agrees to vacate the Demised Premises herein
specified and relocate to said substituted space promptly after the substituted
space is ready for Tenant's occupancy as provided herein, and Tenant's failure
to do so shall constitute an event of default by Tenant under this Lease. If
Tenant has not relocated its premises within sixty (60) days after Landlord
first notifies Tenant of Landlord's desire to relocate Tenant, Landlord shall
have the right to terminate this Lease by giving notice of such termination to
Tenant. Such termination shall be effective upon any date selected by Landlord
in the Termination Notice which is at least ten (10) days after the Termination
Notice is given by Landlord to Tenant. Tenant hereby further covenants and
agrees to promptly execute and deliver to Landlord any lease amendment and other
such document appropriate to reflect the changes in the Lease described or
contemplated above.
39. FORCE MAJEURE. In the event of strike, lockout, labor trouble, civil
-------------
commotion, Act of God, or any other cause beyond a party's control (collectively
"force majeure") resulting in Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, Landlord's
performance shall be excused for the period of force majeure, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of force
majeure, Tenant is delayed in performing any of its obligations under this
Lease, other than Tenant's obligation to take possession of the Demised Premises
on or before the Rental Commencement Date and to pay Rent and all other charges
and sums payable by Tenant hereunder, Tenant's performance shall be executed for
a period equal to such delay and Tenant shall not during such period be
considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed.
40. LANDLORD'S LIABILITY. Landlord shall have no personal liability with
--------------------
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look solely to the
equity of Landlord in and to the Building and the Land for satisfaction of
Tenant's remedies, if any. It is expressly understood and agreed that
Landlord's liability under the terms of this Lease shall in no event exceed the
amount of its interest in and to said Land and Building. In no event shall any
partner of Landlord nor any joint venturer in Landlord, nor any officer,
director or shareholder of Landlord or any such partner or joint venturer of
Landlord be personally liable with respect to any of the provisions of this
Lease. In any action or proceeding brought to enforce this obligation of
Landlord to Tenant under this Lease, Landlord and Tenant agree that any final
judgment or decree shall be enforceable against Landlord only to the extent of
Landlord's interest in the Building, as aforesaid, and any such judgement or
decree shall not be capable of execution against, nor be a lien on, any assets
of Landlord other than its interest in the Building, as aforesaid.
41. LANDLORD'S COVENANT OF QUIET ENJOYMENT. Provided Tenant performs the
--------------------------------------
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
42. GUARANTY. In order to induce Landlord to execute this Lease, and for
--------
other consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned parties identified as "Guarantors" on the
signature page of this Lease (collectively, jointly and severally referred to as
the Guarantors") agree to enter into and simultaneously with the execution of
this Lease have entered into a Guaranty in the form attached hereto as Exhibit
-------
"H".
---
43. HAZARDOUS SUBSTANCES. Tenant hereby covenants and agrees that Tenant
--------------------
shall not cause or permit any "Hazardous Substances" (as hereinafter defined) to
be generated, placed, held, stored, used, located or
17
disposed of at the Project or any part thereof, except for Hazardous Substances
as are commonly and legally used or stored as a consequence of using the Demised
Premises for general office and administrative purposes, but only so long as the
quantities thereof do not pose a threat to public health or to the environment
or would necessitate a "response action", as that term is defined in CERCLA (as
hereinafter defined), and so long as Tenant strictly complies or causes
compliance with all applicable governmental rules and regulations concerning the
use or production of such Hazardous Substances. For purposes of this Article 43,
"Hazardous Substances" shall mean and include those elements or compounds which
are contained in the list of Hazardous Substances adopted by the United States
Environmental Protection Agency (EPA) or in any list of toxic pollutants
designated by Congress or the EPA or which are defined as hazardous, toxic,
pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, cost of settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against, Landlord by any
person, entity or governmental agency for, with respect to, or as a direct or
indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission or release from, the Demised Premises of any Hazardous
Substance (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or claims asserted or arising under
the Comprehensive Environmental Response, Compensation and Liability Act
["CERCLA"], any so-called federal, state or local "Superfund" or "Superlien"
laws or any other Environmental Law); provided, however, that the foregoing
indemnity is limited to matters arising solely from Tenant's violation of the
covenant contained in this Article. The obligations of Tenant under this Article
shall survive any expiration or termination of this Lease.
44. SUBMISSION OF LEASE. The submission of this Lease for examination
-------------------
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant and Guarantors.
45. SEVERABILITY. If any clause or provision of the Lease is illegal,
------------
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
46. ENTIRE AGREEMENT. This Lease contains the entire agreement of the
----------------
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
47. HEADINGS. The use of headings herein is solely for the convenience of
--------
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
48. BROKER. Broker(s) (as defined in Article 1[p] is [are] entitled to a
-------
leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be paid by Landlord to Broker(s) in accordance with the terms
of a separate agreement between Landlord and Broker(s). Tenant hereby
authorizes Broker(s) and Landlord to identify Tenant as a tenant of the Building
and to state the amount of space leased by Tenant in advertisement and
promotional materials relating to the Building. Tenant represents and warrants
to Landlord that (except with respect to any Broker[s] identified in Article
1[p] hereinabove, which has [have] acted as agent for Tenant [and not for
Landlord] in this transaction) no broker, agent, commission salesperson, or
other person has
18
represented Tenant in the negotiations for and procurement of this Lease and of
the Demised Premises and that (except with respect to any Broker[s] identified
in Article 1[p] hereinabove) no commissions, fees or compensation of any kind
are due and payable in connection herewith to any broker, agent, commission
salesperson or other person as a result of any act or agreement of Tenant.
Tenant agrees to indemnify and hold Landlord harmless for all loss, liability,
damage, claim, judgment, cost or expense (including reasonable attorneys' fees
an court costs) suffered or incurred by Landlord as a result of a breach by
Tenant of the representation and warranty contained in the immediately preceding
sentence or as a result of Tenant's failure to pay commissions, fees or
compensation due to any broker who represented Tenant, whether or not disclosed,
or as a result of any claim for any fee, commission or similar compensation with
respect to this Lease made by any broker, agent or finder (other than the
Broker[s] identified in Article 1[p] hereinabove) claiming to have dealt with
Tenant, whether or not such claim is meritorious. The parties hereto do hereby
acknowledge and agree that Xxxxxxx & Xxxx, Inc. has acted as agent for Landlord
in this transaction and shall be paid a commission by Landlord in connection
with this transaction pursuant to the terms of a separate written commission
agreement. Xxxxxxx & Xxxx, Inc. has not acted as agent for Tenant in this
transaction. Landlord hereby warrants and represents to Tenant that Landlord has
not dealt with any broker, agent or finder other than Xxxxxxx & Xxxx, Inc. in
connection with this Lease and, Landlord hereby agrees to indemnify and hold
Tenant harmless from and against any and all loss, damage, liability, claim,
judgment, cost or expense (including, but not limited to, reasonable attorneys'
fees and court costs) that may be incurred or suffered by Tenant because of any
claim for any fee, commission or similar compensation with respect to this Lease
made by any broker, agent or finder claiming to have represented Landlord.
49. GOVERNING LAW. The laws of the State of Georgia shall govern the
-------------
validity, performance and enforcement of this Lease.
50. AUTHORITY. If Tenant executes this Lease as a corporation, each of
---------
the persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly incorporated or duly qualified (if a
foreign corporation) corporation and if fully authorized and qualified to do
business in the State in which the Demised Premises are located, that the
corporation has full right and authority to enter into this Lease, and that each
person signing on behalf of the corporation is an officer of the corporation and
is authorized to sign on behalf of the corporation. If Tenant signs as a
partnership, joint venture or sole proprietorship or other business entity (each
being herein called "Entity"), each of the person executing on behalf Tenant
does hereby covenant and warrant that Tenant is a duly authorized and existing
Entity, that Tenant has full right and authority to enter into this Lease, that
all persons executing this Lease on behalf of the Entity are authorized to do so
on behalf of the Entity, and that such execution is fully binding upon the
Entity and its partners, joint venturers or principals, as the case may be.
Upon the request of Landlord, Tenant shall deliver to Landlord documentation
satisfactory to Landlord evidencing Tenant's compliance with this Article, and
Tenant agrees to promptly execute all necessary and reasonable applications or
documents as reasonably requested by Landlord, required by the jurisdiction in
which the Demised Premises is located, to permit the issuance of necessary
permits and certificates for Tenant's use and occupancy of the Demised Premises.
51. JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
---------------------------
person, corporation, partnership or other entity, the liability hereunder of all
such persons, corporations, partnerships or other entities shall be joint and
several.
52. SPECIAL STIPULATIONS. The special stipulations attached hereto as
--------------------
Exhibit "G" are hereby incorporated herein by this reference as though fully set
-----------
forth (if none, so state). To the extent the special stipulations conflict with
or are inconsistent with the foregoing provisions of this Lease or any exhibit
to this Lease, the special stipulations shall control.
19
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
LANDLORD:
PAVILION PARTNERS, L.P.
By: Bentley Investments, Inc., general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------------
Title: Secretary
-------------------------------------------
[CORPORATE SEAL]
TENANT:
QUALITY DIAGNOSTIC CARDIOLOGY SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
President
[CORPORATE SEAL]
(if appropriate)
GUARANTORS:
(SEAL)
Name: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
(SEAL)
Name: ___________________________________________
20
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT ONE:
----------
All that tract or parcel of land lying and being in Land Xxx 00 xx xxx 00xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
To find the point of beginning, begin at a point located at the intersection of
the northern right of way line of Lake Xxxxx Drive (60-foot right of way) and
the line dividing Land Xxx 00 xx xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and
Land Xxx 000 xx xxx 00xx Xxxxxxxx, XxXxxx Xxxxxx, Xxxxxxx; thence running along
the northern right of way line of Lake Xxxxx Drive south 89 degrees 39 minutes
30 seconds west, 254.49 feet to a point and the point of beginning; thence
running along the northern right of way line of Lake Xxxxx Drive south 89
degrees 39 minutes 30 seconds west, 590.38 feet to an iron pin; thence leaving
the northern right of way line of Lake Xxxxx Drive and running north 00 degrees
01 minutes 35 seconds west, 420.26 feet to an iron pin located on the
southeastern right of way line of Interstate Xxxxxxx Xx. 000; thence running
along the southeastern right of way line of Xxxxxxxxxx Xxxxxxx Xx. 000 the
following courses and distances: north 56 degrees 56 minutes 10 seconds east,
86.42 feet to a point; north 69 degrees 19 minutes 30 seconds east, 184.42 feet
to a point; north 69 degrees 20 minutes 30 seconds east, 89.0 feet to a point;
north 69 degrees 32 minutes east, 290.8 feet to an iron pin; and south 76
degrees 29 minutes 30 seconds east, 54.11 feet to a point; thence leaving said
right of way line of Xxxxxxxxxx Xxxxxxx Xx. 000 and running south 21 degrees 12
minutes 15 seconds west, 66.10 feet to a point; thence running south 00 degrees
25 minutes 28 seconds east, 466.17 feet to a point; thence running south 58
degrees 48 minutes 27 second west, 50.14 feet to a point; thence running south
00 degrees 22 minutes 59 seconds east, 95.70 feet to the point of beginning.
All as is more particularly described and delineated in that survey prepared by
Xxxxx & Xxxxxxxx Engineers, dated December 5, 1985, last revised November 8,
1993, bearing the seal of X.X. Xxxxxxxxx, Georgia registered land surveyor no.
2121.
Together with those easements as set forth in that Easement and Maintenance
Agreement Peachtree Dunwoody Pavilion, dated August 31, 1992, by and between
Trustees under Declaration of Trust, dated October 8, 1984, as amended, of EQK
Realty Investors I, a Massachusetts Business Trust, and Computer Generation
Incorporated, a Delaware Corporation, recorded at Deed Book 15695, commencing at
page 208, records of the Clerk of the Superior Court, Xxxxxx County, Georgia.
21
EXHIBIT "B"
FLOOR PLAN
----------
22
EXHIBIT "C"
TENANT ACCEPTANCE AGREEMENT
---------------------------
This Agreement made this _____ day of __________, 199___ between PAVILION
PARTNERS, L.P., a Georgia limited partnership (hereinafter referred to as
"Landlord") and QUALITY DIAGNOSTIC CARDIOLOGY SERVICES, INC. (hereinafter
referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a Lease, dated ____________, 199____,
(hereinafter referred to as the "Lease") for Suite 370 (hereinafter referred to
as the "Premises") in the building located at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000.
NOW, THEREFORE, pursuant to the provisions of the Lease, Landlord and Tenant
mutually agree as follows:
Capitalized terms not defined herein shall have the meanings set forth in the
Lease.
The Commencement Date of the Lease Term is November 1, 1996. The Expiration
Date of the Lease Term is March 31, 2001. The Rentable Area of the Premises is
2,093 Square Feet.
Tenant is in possession of, and has accepted, the Premises demised by the Lease,
and acknowledges that all the work (including the Work) to be performed by the
Landlord in the Premises as required by the terms of the Lease has been
satisfactorily completed, except for the items set out on the attached Exhibit
C-1. Tenant further certifies that all conditions of the Lease required of
Landlord as of this date have been fulfilled and there are no defenses or
setoffs against the enforcement of the Lease by Landlord.
IN WITNESS WHEREOF, the parties hereto have duly executed and sealed this
Agreement, as of the date and year first above stated.
LANDLORD:
PAVILION PARTNERS, L.P.
By: Bentley Investments, Inc., its general partner
By: _____________________________________
Title: ______________________________
(CORPORATE SEAL)
23
TENANT:
QUALITY DIAGNOSTIC CARDIOLOGY SERVICES, INC.
By: _____________________________________
Xxxxxxx X. Xxxxxx
Title: President
----------------------------------
Attest:__________________________________
Title:___________________________________
(CORPORATE SEAL)
24
EXHIBIT "C-1"
As of this _______ day of ___________, 199___, the following punchlist items
remain to be completed: (If "none", so state.)
Tenant Name: Initial:
-------
QUALIT DIAGNOSTIC CARDIOLOGY SERVICES, INC. ________Landlord
Suite Number: 370 ________Tenant
25
EXHIBIT "D"
TENANT IMPROVEMENT AGREEMENT
----------------------------
THIS AGREEMENT made as of the 16th day of September, 1996 between Pavilion
Partners, L.P., Georgia Limited Partnership ("Landlord") and Quality Diagnostic
Cardiology Services, Inc. ("Tenant").
Reference is made to the Lease Agreement dated September 16, 1996 (the
"Lease") for premises known as Suite 370 (the "Premises"), located at 0000 Xxxx
Xxxxx Xxxxx, which property is more particularly described in the Lease.
The terms "Plans", "Work", "Space Plan", "Working Drawings", "Finish
Selections" and "Landlord's Space Planner" are defined in Section XIII, below.
Capitalized terms not defined in this Agreement shall have the meanings set
forth in the Lease.
I. BASIC TERMS
A. Space Planner: Xxxxxx Xxxx Design Associates, Inc.
B. Date to Complete Planning: September 15, 1996 (including any
Space Plan, Working Drawings and Finish Selections).
X. Xxxx to Substantially Complete Work: Commencement Date under
the Lease, as adjusted pursuant to this Agreement.
D. Improvement Allowance Provided by Landlord: As per Paragraph
1(n) of the herein Lease.
E. Number of Space Plan Revisions included in the Improvement
Allowance: Two.
F. Number of Working Drawing Revisions included in the Improvement
Allowance: One.
II. BASIC AGREEMENT. On or before the "Date To Complete Planning"
described above, Tenant shall: (a) provide Space Planner with all information
concerning Tenant's requirements in order for Space Planner to prepare the
Plans, and (b) arrange for Space Planner to prepare the Plans, and obtain
Landlord's written approval thereof. However, Tenant shall not be responsible
for delays caused solely by Landlord or Landlord's Space Planner, as further
described in Section III, below.
On or before the Commencement Date set forth in Article 1 of the Lease,
Landlord shall substantially complete the Work shown on the final approval
Plans. However, Landlord shall not be responsible for delays caused by Tenant
or Tenant's agents or employees and as further described in Section IV, below.
As a part of the Improvement Allowance, Landlord shall bear the cost of the
Plans (including any engineering reports, or other studies or tests in
connection therewith, but excluding any furniture planning) provided that the
cost of the Plans together with the costs of Space Plan Revisions (as stipulated
I.E. above) and Working Drawing Revisions (as stipulated in I.F. above) shall
not exceed the Improvement Allowance. Tenant shall bear any costs of the Plans
over the Improvement Allowances set out above, all costs in connection with
designing non-building standard items, and all costs of subsequent changes,
additions, and modifications to the plans.
Landlord shall bear the cost of the Work (including the cost of building
permits and sales tax) up to the Improvement Allowance described above (if any),
less that part of the Improvement Allowance (if any) applied to the cost of the
Plans, and Tenant shall bear any costs over such amounts.
26
III. DELAYS IN PLANNING. The Commencement Date under the Lease shall be
postponed on a day for day basis by the number of days occurring after the "Date
to Complete Planning" described above until the date the Final Plans, including
any revisions reasonably required by Landlord pursuant to Section V and
revisions by Tenant to reduce Tenant's Cost pursuant to Section IX, are approved
(collectively called "Delays in Planning"). However, the Rental Commencement
Date shall be postponed only to the extent that substantial completion of the
Work is delayed beyond the Commencement Date set forth in the Lease Summary of
the Lease as a result of one or more of the following events (collectively
called "Landlord Delays"):
A. Landlord takes more than five (5) working days to approve or
disapprove the Plans or revisions thereof after receiving the
same (or such longer time as may be reasonably required in order
to obtain any engineering or HVAC report or due to other special
or unusual features of the Work or Plans);
B. Landlord's Space Planner takes more than five (5) working days
to meet with Tenant after receiving a written request for a
meeting, or takes more than seven (7) working days to prepare or
revise the Plans after meeting with Tenant and receiving all
information from Tenant required in order to do so (provided
this provision shall apply only if Tenant uses "Landlord's Space
Planner" as described in Section XIV below to prepare the
Plans); or
C. Landlord takes more than thirty (30) working days to provide
Tenant with cost estimates after receiving Plans sufficiently
detailed for such purposes (provided this provision (c) shall
only apply if Landlord elects to provide cost estimates under
Section IX below).
IV. DELAYS IN CONSTRUCTION.
A. Lease shall be postponed for each day that Landlord fails to
substantially complete the Work thereby as a result of strikes, acts of God,
shortages of materials or labor, governmental approvals or requirements, the
various causes set forth below, or any other causes beyond Landlord's reasonable
control.
B. The Commencement Date, but not the Rental Commencement Date,
shall be postponed as a result of one or more of the following (collectively
called "Tenant Delays"):
(1) Delays in Planning as described above (except for Landlord
Delays);
(2) Tenant's requests for changes to the Work or Change Orders under
Section VIII, or
(3) Tenant's failure to furnish an amount equal to Landlord's
reasonable estimate of Tenant's Cost (if any) within 10 days, as
described in Section IX (which shall give Landlord the absolute
right to postpone the Work until such amount is furnished to
Landlord);
(4) Tenant's requirement of any upgrades, special work or other non-
building standard items, or items not customarily provided by
Landlord to office tenants, to the extent that the same involve
longer lead times, installation times, delays or difficulties in
obtaining building permits, requirements for any governmental
approval, permit or action beyond the issuance of normal
building permits (as described in Section VI), or other delays
not typically encountered in connection with Landlord's standard
office improvements;
(5) The performance by Tenant or Tenant's agents or employees of any
work at or about the Premises, or
27
(6) any act or omission of Tenant or Tenant's agents or employees,
or any breach by Tenant of any provision contained in this
Agreement or in the Lease, or any failure of Tenant to cooperate
with Landlord or otherwise act in good faith in order to cause
the Work to be designed and performed in a timely manner.
V. LANDLORD'S APPROVAL OF PLANS. Landlord shall either approve any
Plans or revisions submitted pursuant to this Agreement or disapprove the same
with suggestions for making the same acceptable within the time required under
Section III. Except as otherwise provided herein, Landlord shall not
unreasonably withhold approval if the Plans provide for a customary office
layout, with finishes and materials generally conforming to building standard
finishes and materials currently being used by Landlord at the Building, are
compatible with the Building's shell and core construction, and if no
modifications will be required for the Building's electrical, heating, air-
conditioning, ventilation, plumbing, fire protection, life safety, or other
systems or equipment, and will not require any structural modifications to the
Building, whether required by heavy loads or otherwise. Landlord may request
that Tenant approve Landlord's suggested changes in writing (such approval not
to be unreasonably withheld), or Landlord may arrange directly with Space
Planner for revised Plans to be prepared incorporating such suggestions (in
which case, Tenant shall sign or initial the revised Plans and/or Landlord's
notice) concerning the suggested changes, if requested by Landlord). Landlord's
approval of the Plans shall not be deemed a warranty as to the adequacy or
legality of the design, and Landlord hereby disclaims any responsibility or
liability for the same. Anything to the contrary notwithstanding, Landlord may
in its absolute discretion elect to disapprove any proposed Plans which show (i)
the rentable area of the Premises being more than ten percent (10%) smaller than
the Rentable Floor Area of Demised Premises, as defined in Article 1 of the
Lease; and (ii) any reduction in the rentable area of the Premises from the
Rentable Floor Area of the Demised Premises indicated in Article 1 of the Lease
where such reduction results in a space remaining between Tenant's space and any
other party wall, exterior wall or corridor partition, which in the sole opinion
of Landlord, would leave an unusable or unleaseable area due to its size,
configuration or location. Furthermore, in the event that the proposed Plans
show a rentable area of the Premises greater than the Rentable Floor Area of the
Demised Premises as set forth in Article 1 of the Lease, Landlord may, in its
absolute discretion, elect to disapprove such Plans if the configuration of the
Premises shown on such Plans infringes on any area of the Building reserved for
others, being designed for others, or being constructed for others, or to the
extent that such increase leaves a remaining unleased area which, in the sole
opinion of Landlord, would be unleaseable due to its location, size or
configuration.
VI. GOVERNMENTAL APPROVAL OF PLANS. Landlord shall apply for any normal
building permits required for the Work which are issued pursuant to a local
building code as a ministerial matter. If the Plans must be revised in order to
obtain such building permits, Landlord shall promptly notify Tenant. In such
case, Tenant shall promptly arrange for the plans to be revised to satisfy the
building permit requirements and shall submit the revised Plans to Landlord for
approval as a Change Order under Section VIII. Landlord shall have no obligation
to apply for any zoning, parking or sign code amendments, approvals, permits or
variances, or any other governmental approval, permit or action (except normal
building permits as described above). If any such other matters are required,
Tenant shall promptly seek to satisfy such requirements or revise the Plans to
eliminate such requirements. Delays in substantially completing the Work by the
Commencement Date as a result of requirements for building permits or other
governmental approvals, permits or actions shall affect the Commencement Date
and the Rental Commencement Date to the extent provided in Section IV(B).
VII. CHANGES AFTER PLANS ARE APPROVED. If Tenant shall desire any
changes, alterations, or additions to the final Plans after they have been
approved by Landlord, Tenant shall submit a detailed written request or revised
Plans (the "Change Order") to Landlord for approval. If reasonable and
practicable and generally consistent with the Plans theretofore approved,
Landlord shall not unreasonably withhold approval, but all costs in connection
therewith, including without limitation construction costs, permit fees, and any
additional plans, drawing and engineering reports or other studies or tests, or
revisions of such existing items, shall be paid for by Tenant as a Tenant's Cost
under Section IX.
28
VIII. UNUSED IMPROVEMENT ALLOWANCE. If all or any portion of any
Improvement Allowance shall not be used, Tenant shall be entitled to the savings
and Tenant shall receive a credit therefor to Base Rental.
IX. TENANT'S COST.
A. Any amounts that Tenant is required to pay under this Agreement
shall be referred to as "Tenant's Costs" herein. Tenant's Cost shall be deemed
Additional Rental under the Lease. Tenant shall deposit the estimated amount of
such Additional Rental with Landlord within 10 days after requested by Landlord.
In connection with submitting any cost analysis to Tenant under this Section,
Landlord may request Tenant's written approval of such analysis. Tenant shall
not unreasonably withhold such approval, and shall approve or disapprove the
same in writing within five (5) days after requested by Landlord. If Tenant
reasonably disapproved any such analysis, Tenant shall meet with the Space
Planner and eliminate or substitute items in order to reduce Tenant's Cost.
B. Any cost analysis based on a Space Plan or so-called "pricing
plan" will be preliminary in nature to the extent that: (1) Tenant thereafter
makes changes in the Working Drawings or the Work, (2) overtime labor is
required in order to substantially complete the Work by the Work Completion
Date, (3) concealed conditions are encountered on the job site, (4) new legal
requirements become effective following preparation of the estimate, or (5)
there are strikes, acts of God, shortages of materials or labor, or other causes
beyond Landlord's reasonable control.
X. COMPLETION.
A. Landlord shall be deemed to have "substantially completed" the
Work for purposes hereof if Landlord has caused all of the Work to be completed
substantially except for Punchlist Items.
B. Landlord reserves the right to substitute comparable or better
materials and items for those shown in the Plans, so long as they do not
materially and adversely affect the appearance or function of the Premises.
XI. WORK PERFORMED BY TENANT. Landlord, at Landlord's discretion, may
permit Tenant and Tenant's agents and contractors to enter the Premises prior to
completion of the Work in order to make the Premises ready for Tenant's use and
occupancy. If Landlord permits such entry prior to completion of the Work, then
such permission is conditioned upon Tenant and Tenant's agents, contractors,
workmen, mechanics, suppliers and invitees working in harmony and not
interfering with Landlord and Landlord's contractors in doing the Work or with
other tenants and occupants of the Building. If at any time such entry shall
cause or threaten to cause such disharmony or interference, Landlord shall have
the right to withdraw such permission upon twenty-four (24) hours oral or
written notice to Tenant. Tenant agrees that any such entry into the Premises
shall be deemed to be under all of the terms, covenants, condition and
provisions of the Lease (including, without limitation, all insurance
requirements), except as to the covenant to pay Rent thereunder, and further
agrees that Landlord shall not be liable in any way for any injury, loss or
damage which may occur to any items of work constructed by Tenant or to other
property of Tenant that may be placed in the Premises prior to completion of the
Work, the same being at Tenant's sole risk.
XII. LIABILITY. The parties acknowledges that Landlord is not an
architect or engineer, and that the Work will be designed and performed by
independent architects, engineers and contractors. Accordingly, Landlord does
not guarantee or warrant that the Plans will be free from errors or omissions,
nor that the Work will be free from defects, and Landlord shall have no
liability therefor.
XIII. CERTAIN DEFINITIONS.
A. "Work" herein means the construction of the improvements shown
on the final approved Plans, and any demolition, preparation or other work
required in connection therewith, including
29
without limitation, any work required to be performed outside the Premises in
order to obtain building permits for the work to be performed within the
Premises (if Landlord elects to perform such work outside the Premises).
B. "Landlord's Space Planner" herein means the space planner (if
any) regularly used by Landlord and with whom Landlord has a written contractual
arrangement for space planning services at the Building.
C. "Finish Selections" herein means the type and color of floor and
wall coverings, wall paint and any other finishes.
D. "Plans" herein means, collectively, any Space Plan, Working
Drawings, or other plans, drawings or specifications, and Finish Selections (and
in the event of any inconsistency between any of the same, or revisions thereto,
the latest dated item approved by Landlord shall control). The Plans shall be
signed or initialed by Tenant, if requested by Landlord.
E. "Space Plan" herein means a preliminary floor plan, generally
showing demising walls, corridor doors, interior partition walls and interior
doors. The term "Space Plan" for purposes of this Agreement shall also refer to
any so-called "pricing plan", i.e. a more detailed Space Plan, drawn to scale,
showing: (1) any special walls, glass partitions or corridor doors, (2) any
restrooms, kitchens, computer rooms, file rooms and other special purpose rooms,
and any sinks or other plumbing facilities, or other special facilities or
equipment, (3) communications system, indicating telephone and computer outlet
locations, and (4) any other details or features reasonably required in order to
obtain preliminary cost estimate as described in Section IX above, or otherwise
reasonably requested by Landlord or Landlord's Space Planner.
F. "Working Drawings" herein means fully dimensioned architectural
construction drawings and specifications, and any required engineering drawings
(including mechanical, electrical, plumbing, air conditioning, ventilating and
heating), and shall include any applicable items described above for the Space
plan, and if applicable; (1) electrical outlet locations, circuits and
anticipated usage therefor, (2) reflected ceiling plan, including lighting,
switching, and any special ceiling specifications, (3) duct locations for
heating, ventilating and air conditioning equipment, (4) details of all
millwork, (5) dimensions of all equipment and cabinets to be built in, (6)
furniture plan showing details of space occupancy, (7) keying schedule, (8)
lighting arrangement, (9) location of print machines, equipment in lunch rooms,
concentrated file and library loadings and any other equipment or systems (with
brand names wherever possible) which require special consideration relative to
air conditioning, ventilation, electrical, plumbing, structural, fire
protection, life - fire safety system, or mechanical systems, (10) special
heating, ventilating and air conditioning equipment and requirements, (11)
weight and location of heavy equipment, and anticipated loads for special usage
rooms, (12) demolition plan, (13) partition construction plan, (14) Finish
Selections, and any other details or features reasonably required in order to
obtain a more firm cost estimate as described in Section IX, above, or otherwise
reasonably requested by Landlord or Landlord's Space Planner.
XIV. INCORPORATION INTO LEASE; DEFAULT. THE PARTIES AGREE THAT THE
PROVISIONS OF THIS AGREEMENT ARE HEREBY INCORPORATED BY THIS REFERENCE INTO THE
LEASE FULLY AS THOUGH SET FORTH THEREIN. In the event of any express
inconsistencies between the Lease and this Agreement, the latter shall govern
and control. Any default by a party hereunder shall constitute a default by that
party under the Lease and said party shall be subject to the remedies and other
provisions applicable thereto under the Lease.
30
LANDLORD:
PAVILION PARTNERS, L.P.
By: Bentley Investments, Inc., its general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------------------
Title: Secretary
---------------------------------------------
(CORPORATE SEAL)
TENANT: QUALITY DIAGNOSTIC
CARDIOLOGY SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx
Title: President
--------------------------------------------
Attest: /s/ X. Xxxxxxx
-------------------------------------------
Title: Secrertary
---------------------------------------------
(CORPORATE SEAL)
31
EXHIBIT "E"
RULES AND REGULATIONS
---------------------
1. No sign, picture, advertisement or notice visible from the exterior of the
Demised Premises shall be installed, affixed, inscribed, painted or otherwise
displayed by Tenant on any part of the Demised Premises or the Building unless
the same is first approved by Landlord. Any such sign, picture, advertisement
or notice approved by Landlord shall be painted or installed for Tenant at
Tenant's cost by Landlord or by a party approved by Landlord. No awnings,
curtains, blinds, shares or screens shall be attached to or hung in, or used in
connection with any window or door of the Demised Premises without the prior
consent of Landlord, including approval by Landlord of the quality, type,
design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed the
capacity feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held for
sale to the general public. Tenant shall not do or permit to be done in or about
the Demised Premises or Project anything which shall increase the rate of
insurance on said Project or obstruct or interfere with the rights of other
lessees of Landlord or annoy them in any way, including, but not limited to,
using any musical instrument, making loud or unseemly noises, or singing, etc.
The Demised Premises shall not be used for sleeping or lodging. No cooking or
related activities shall be done or permitted by Tenant in the Demised Premises
except with permission of Landlord. Tenant will be permitted to use for its own
employees within the Demised Premises a small microwave oven and Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages, provided that such use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and regulations. No
vending machines of any kind will be installed, permitted or used on any part of
the Demised Premises without the prior consent of Landlord. No part of said
Project or Demised Premises shall be used for gambling, immoral or other
unlawful purposes. No intoxicating beverage shall be sold in said or around the
Project or Demised Premises without the prior written consent of Landlord. No
area outside of the Demised Premises shall be used for storage purposes at any
time.
4. No birds or animals of any kind shall be brought into the Building (other
than trained seeing-eye dogs required to be used by the visually impaired). No
bicycles, motorcycles or other motorized vehicles shall be brought into the
Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators and
stairways in the Building shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and egress. No
windows, floors or skylights that reflect or admit light into the Building shall
be covered or obstructed by Tenant. Toilets, wash basins and sinks shall not be
used for any purpose other than those for which they were constructed, and no
sweeping, rubbish or other obstructing or improper substances shall be thrown
therein. Any damage resulting to them, or to heating apparatus, from misuse by
Tenant or its employees, shall be borne by Tenant.
6. Only one (1) key for the Demised Premises will be furnished to Tenant
without charge. Landlord may make a reasonable charge for any additional keys.
Only one (1) access card for the Building will be furnished to Tenant without
charge. Landlord may make a reasonable charge for any additional access cards.
No additional lock, latch or bolt of any kind shall be placed upon any door nor
shall any changes be made in existing locks without written consent of Landlord
and Tenant shall in each such case furnish Landlord with a key for any such
lock. At the termination of the Lease, Tenant shall return to Landlord all keys
and access cards furnished to Tenant by Landlord, or otherwise procured by
Tenant, and in the event of loss of any keys or access cards so furnished,
Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position, and manner
of installation of heavy articles such as safes, machines and other equipment
brought into the Building. No safes, furniture, boxes, large
32
parcels or other kind of freight shall be taken to or from the Demised Premises
or allowed in any elevator, hall or corridor except at times allowed by
Landlord. No deliveries shall be made in passenger elevators. Tenant shall make
prior arrangements with Landlord for use of freight elevator for the purpose of
transporting such articles and such articles may be taken in or out of said
Building only between or during such hours as may be arranged with and designed
by Landlord. The persons employed to move the same must be approved by Landlord.
No hand trucks, except those equipped with rubber tires and side guards, shall
be permitted in the Building. No hand trucks shall be permitted in any passenger
elevator. In no event shall any weight to be placed upon any floor by Tenant so
as to exceed the design conditions of the floors at the applicable locations.
8. Tenant shall not cause or permit any gases, liquids or odors to be produced
upon or permeate from the Demised Premises, and no flammable, combustible or
explosive fluid, chemical, substance or item (including, without limitation,
natural Christmas trees) shall be brought into the Building.
9. Every person, including Tenant, its employees and visitors, entering and
leaving the Building may be questioned by watchman as to that person's business
therein and may be required to sign such person's name on a form provided by
Landlord for registering such person; provided that, except for emergencies or
other extraordinary circumstances, such procedures shall not be required between
the hours of 7:00 a.m. and 6:00 p.m., on all days except Saturdays, Sunday, and
Holidays. Landlord may also implement a card access security system to control
access during such other times. Landlord shall not be liable for excluding any
person from the Building during such other times, or for admission of any person
to the Building at any time, or for damages or loss or theft resulting therefrom
to any person, including Tenant.
10. Unless agreed to in writing by Landlord, Tenant shall not employ any person
other than Landlord's contractors for the purpose of cleaning and taking care of
the Demised Premises. Cleaning service will not be furnished on nights when
rooms are occupied after 6:30 p.m., unless, by agreement in writing, services is
extended to a later hour for specifically designated rooms. Landlord shall not
be responsible for any loss, theft, mysterious disappearance of or damage to,
any property, however occurring. Only persons authorized by Landlord may furnish
ice, drinking water, towels, and other similar services within the Building and
only at hours and under regulations fixed by Landlord.
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Demised
Premises shall be kept whole and in good repair. Tenant shall not injure,
overload or deface the Building, the woodwork or the walls of the Demised
Premises, nor permit any noisome, noxious, noisy or offensive business.
12. If Tenant requires wiring for a xxxx or buzzer system, such wiring shall be
done by the electrician of Landlord only, and no outside wiring persons shall be
allowed to do work of this kind unless by the written permission of Landlord or
its representatives. If telegraph or telephonic service is desired, the wiring
for same shall be approved by Landlord, and no boring or cutting for wiring
shall be done unless approved by Landlord or its representatives, as stated. The
electric current shall not be used for power or heating unless written
permission to do so shall first have been obtained from Landlord or its
representatives in writing, and at an agreed cost to Tenant.
13. Tenant and its employees and invitees shall observe and obey all parking
and traffic regulations as imposed by Landlord. All vehicles shall be parked
only in areas designated therefor by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any other
written materials in the Building are prohibited, and Tenant shall cooperate to
prevent the same.
15. Landlord shall have the right to change the name of the Building and/or the
Project and to change the street address of the Building, provided that in the
case of a change in the street address, Landlord shall give Tenant not less that
180 days' prior notice of the change, unless the change is required by
governmental authority.
33
16. The directory of the Building will be provided for the display of the name
and location of the tenants. And additional name which Tenant shall desire to
place upon said directory must first be approved by Landlord, and if so
approved, a reasonable charge will be made therefor.
17. Tenant, in order to obtain maximum effectiveness of the cooling system,
shall lower and close the blinds (at not less than a 45 degrees angle) or drapes
when the sun's rays are directly in windows of the Demised Premises. Tenant
shall not remove the standard blinds installed in the Demised Premises. Tenant
shall not place items on window xxxxx in the Demised Premises.
18. Smoking is prohibited in the main building lobby, public corridors,
elevator lobbies, service elevator vestibules, stairwells, restrooms and other
common areas within the Building.
19. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular lessee, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
lessee, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the other lessees of the Building.
20. These Rules and Regulations are supplemental to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building.
21. Landlord reserves the right to make such other and reasonable Rules and
Regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Buildings and the Land, and for the preservation of
good order therein.
34
EXHIBIT "F"
BUILDING MOVING POLICY/RULES AND REGULATIONS
--------------------------------------------
The following rules pertain to (i) moving Tenant's furniture, equipment and
supplies into or out of the Building, and (ii) the delivery of substantial
amounts of equipment, furniture or supplies to existing tenants in the Building.
Any movers that do not adhere to the following rules will not be allowed to
enter the Building or will be required to discontinue the move.
1. No move into or out of the Building shall take place during normal
business hours of the Building. Moves must be scheduled after 5:30 p.m. on
weekdays or during weekends and holidays.
2. Building management must be notified at least ten (10) days prior to
your proposed moving date in order to coordinate dates and the details of the
move. A representative of the moving company must contact the management office
at least five (5) days prior to the proposed moving date. The service elevator,
which must be used for your move, will be available only if the management
office has been timely notified.
3. All moving company employees should be in uniform or wear some form of
identification. All moving company employees must be bonded.
4. There will be no smoking inside of the building by any employee of the
moving company.
5. Prior to the move, the moving company must submit a Certificate of
Insurance naming Landlord as an additional insured. The moving company must
carry insurance with at least the following coverage:
(a) Worker's compensation insurance in the amount of $100,000.
(b) Comprehensive General Liability insurance shall include coverage for
hazards on premises-operation, elevators, products and completed operations
and also personal injury coverage and contractual liability coverage
designating the assumption of liability under performance of the act of
moving. Such insurance shall be in limits no less than $500,000 per person
bodily; and $500,000 per occurrence for property damage. Property damage
insurance shall be in broad form, including completed operations.
(c) An umbrella policy with a limit of $1,000,000 per occurrence.
Each moving company transporting supplies, furniture, and/or equipment
through the Building shall secure and present to the building manager a
certificate reflecting these coverages at least twenty-four (24) hours before
the move takes place. Please make sure your moving company meets the above
requirements so they will be permitted to move your practice to the Building.
6. The route to be followed in the Building during the move must be
approved by Landlord. The moving company must provide and install adequate
protective coverings on all vulnerable corners, walls, door facings, elevator
cabs and other areas along the route to be followed during the move. These areas
will be inspected for damage after the move.
7. Clean masonite sections must be used as runners on all finished floor
areas where heavy furniture or equipment is being moved with wheel or skid type
dollies. The masonite must be at least one-fourth inch think. All sections of
masonite should be taped to prevent sliding.
8. Do not stick duct tape onto the floors, walls, door jambs, or doors.
9. All vendor and moving company boxes and cartons are to be removed from
the premises by the vendor or moving company. They are not to be disposed of in
the dumpster.
35
10. It is the Tenant's responsibility to notify Landlord of items to be
moved which are unusually large or heavy (in excess of 3,500 pounds) or which
may require review by Landlord. Dimensions and weight may prohibit the safe
transport and placement within acceptable structural guidelines. Any large items
that cannot be placed in the service elevator will require special hoisting
arrangements which will be made through the Landlord. Tenant's Moving company
should include in the bid price to the Tenant any additional charges required
for extra services which may need to be provided by the moving company to hoist
large items.
11. Access control personnel will be notified as to the move-in schedule
and will monitor the progress of the move. Any changes in the move-in schedule
must be reported to Landlord or Landlord's representative immediately. An
emergency phone number will be required by the access control personnel for the
moving company's supervisor and for the Tenant's representative responsible for
coordinating the move.
12. When ordering equipment, furniture, supplies, etc. at any time before
or after your move, please specify "Inside Delivery" to your suite, because
Landlord is not responsible for deliveries to your suite.
36
EXHIBIT "G"
SPECIAL STIPULATIONS
--------------------
1. Tenant Improvement Allowance. Landlord shall provide a Tenant Improvement
----------------------------
Allowance in the amount of $0.208 per usable square foot of space per month
of the Lease term occurring from and after the Commencement Date. For
example, if the Commencement Date is November 1, 1996, the Tenant
Improvement Allowance will be Twenty Thousand, Three Hundred Six and 21/100
Dollars ($20,306.21) [$20,306.21 = 1,842 u.s.f. x $0.208/u.s.f./month of
term x 53 months]. The Tenant Improvement Allowance shall be applied to
the cost of space planning and for construction improvements. Any
additional costs of the Tenant Improvements or Space Planning shall be
payable by Tenant. The payment to be made by Landlord pursuant to this
paragraph 1 shall be deemed to satisfy in full Landlord's obligation to
provide a Tenant Improvement Allowance under the Lease.
37
EXHIBIT "H"
STATE OF GEORGIA
COUNTY OF XXXXXX
GUARANTY
--------
KNOW ALL MEN BY THESE PRESENTS:
In consideration of the letting by Pavilion Partners, L.P.
("Landlord") to QUALITY DIAGNOSTIC CARDIOLOGY SERVICES, INC. ("Tenant") pursuant
to a Lease Agreement dated _________________________ (the "Lease") of premises
described therein, the delivery of which lease is conditioned upon the execution
and delivery of this Guaranty, and the payment of One Dollar ($1.00) to the
undersigned by Landlord, the receipt and sufficiency of which are hereby
acknowledged by the undersigned, the undersigned (hereinafter collectively
called the "Guarantor") does hereby unconditionally guarantee the full, prompt
and complete performance by Tenant of all of the terms, covenants, conditions
and agreements contained in the Lease on the part of Tenant to be performed,
including specifically, without limitation, the obligation to pay all rents and
any other charges or obligations therein set forth, together with any and all
renewal or renewals, extension or extensions, modification or modifications
thereof, and substitution or substitutions therefor( all such obligations being
hereinafter called the "Obligations").
Guarantor waives presentment, demand, dishonor, notice of dishonor,
protest, and all other notices whatsoever, including, without limitation,
notices of acceptance hereof, of the existence or creation of the Obligations,
and of all defaults, disputes or controversies with Tenant, and of the
settlement, compromise or adjustment thereof. Guarantor agrees that Landlord
shall have full authority, without obtaining the consent of, giving notice to,
or affecting the liability of Guarantor, to make changes of terms, to extend
time to pay, to release the whole or any part of the Obligations, to settle or
compound differences for less than the full amount owing under the Lease, to
accept notes, trade acceptances or any other form of obligation for the
Obligations, to make arrangements or settlements in or out of court in the case
of receivership, liquidation, readjustment, bankruptcy, reorganization,
arrangement or an assignment for the benefit of creditors and to do anything,
whether or not herein specified, which may be done or waived by or between
Landlord and Tenant. The making of such arrangements, settlements, compromises,
adjustments, extensions of time and so forth shall not diminish, discharge,
modify, reduce extinguish or otherwise affect the liability of Guarantor
hereunder for the full amount owing under the Lease. Guarantor further agrees
that no act or omission on the part of Landlord shall in any way affect, impede
or impair this guaranty.
This guaranty shall be enforceable without Landlord having (i) to
proceed against Tenant (any right to require Landlord to take action against
Tenant as required by O.C.G.A. (S) 10-7-24 being hereby expressly waived) or
--------
against any security for any payments due under the Lease, or (ii) to exercise
any of Landlord's remedies under the Lease; and shall be effective regardless of
the solvency or insolvency of Tenant, any reorganization, merger or
consolidation of Tenant, any change in the composition, nature, personnel or
location of Tenant, or any bankruptcy, receivership, liquidation, reorganization
or other proceeding involving Tenant.
This guaranty shall be binding upon and enforceable against each
person and entity executing this guaranty and upon the respective heirs, legal
representatives, successors and assigns of each such person and entity. The
liability of each person and entity executing this guaranty and the heirs, legal
representatives, successors and assigns of each such entity and person hereunder
is joint and several, primary and unconditional, and shall not be subject to any
claim of offset, counterclaim or defense of Tenant.
This guaranty shall be irrevocable, absolute and unconditional and
shall remain in full force and effect as to Guarantor until such time as all of
the Obligations shall have been paid or satisfied in full. No delay or failure
on the part of Landlord in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by Landlord of any right or
remedy shall preclude other or further exercise thereof or the exercise of any
other right or remedy. Guarantor agrees that this guaranty shall not be
affected by reason of
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assertion by Landlord against Tenant of any rights or remedies reserved to
Landlord in the Lease, or by reason of any summary or other proceedings against
Tenant, or by the amendment or modification of the Lease with or without notice
to, or consent of, the Guarantor.
This guaranty shall remain in full force and effect, and Guarantor
shall continue to be liable for the payment of all amounts owing under the Lease
in accordance with the original terms of the documents and instruments
evidencing the same, notwithstanding the commencement of any bankruptcy,
reorganization or other debtor relief proceeding by or against Tenant, and
notwithstanding any modification, discharge or extension of the Obligations, any
modification or amendment of any document or instrument evidencing any of the
Obligations, any stay of the exercise by Landlord of any of its rights and
remedies against Tenant with respect to any of the Obligations, or any cure of
any default by Tenant under any document or instrument evidencing any of the
Obligations, which may be effected in connection with any such proceeding,
whether permanent or temporary, and notwithstanding any assent thereto by
Landlord.
Landlord may, without notice of any kind, sell, assign or transfer the
Lease, and in such event each and every immediate and successive assignee,
transferee or holder of the Lease shall have the right to enforce this guaranty,
by suit or otherwise, for the benefit of such assignee, transferee or holder, as
fully as if such person were herein by name specifically give such rights,
powers and benefits, but Landlord shall have an unimpaired right to enforce this
guaranty for its benefit as to so much of the Obligations as Landlord has not
sold, assigned, or transferred.
This guaranty has been made and delivered in the State of Georgia and
shall be governed by, construed under and interpreted and enforced in accordance
with the laws of the State of Georgia. Wherever possible, each provision of
this guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this guaranty shall be prohibited
by or be invalid under such law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this guaranty.
Guarantor hereby submits to personal jurisdiction in the State of
Georgia for the enforcement of this guaranty and waives any and all personal
rights under the laws of the State of Georgia or the United States to object to
jurisdiction within the State of Georgia for the purposes of litigation to
enforce this guaranty. In the event that such litigation is commenced,
Guarantor agrees that service of process may be made, and personal jurisdiction
over Guarantor obtained, by the serving of a copy of the summons and complaint
upon Guarantor at the following address:
________________________________
000 XxXxxxxx Xxx
--------------------------------
Xxxxxxxx, XX 00000
--------------------------------
Nothing contained herein shall prevent Landlord from bringing any action or
exercising any rights against any security given to Landlord by Tenant or
Guarantor, or against Guarantor personally, or against any property of
Guarantor, within any other state. Commencement of any such action or
proceeding in any other state shall not constitute a waiver of the agreement
that the laws of the State of Georgia shall govern the rights and obligations of
Guarantor and Landlord hereunder or of the submission made by Guarantor to
personal jurisdiction within the State of Georgia. The aforesaid means of
obtaining personal jurisdiction and perfecting service of process are not
intended to be exclusive but are cumulative and in addition to all other means
of obtaining personal jurisdiction and perfecting service of process now or
hereafter provided by the laws of the State of Georgia.
Guarantor warrants and represents to Landlord that any financial
statements heretofore delivered by Guarantor to Landlord were true and correct
in all respects as of the date delivered to Landlord. At any time this Guaranty
is in effect, Guarantor shall, upon ten (10) days prior written notice from
Landlord, provide
39
Landlord with a current financial statement and financial statements of two (2)
years prior to the current financial statement year. Such statements shall be
prepared in accordance with generally accepted accounting principles and, if
such is the normal practice of Guarantor, shall be audited by an independent
certified public accountant.
Guarantor agrees that Guarantor shall have no right to recover against
Tenant by way of subrogation to the rights of Landlord on account of any payment
by Guarantor to Landlord until all of the Obligations have been paid and
satisfied in full, and Guarantor hereby waives, releases and relinquishes any
such rights of subrogation to such extent.
If Guarantor is a corporation, Guarantor and the persons executing
this guaranty as officers of the Guarantor represent that Guarantor has full
corporate authority to execute this guaranty and that the officers executing
this guaranty are duly authorized to execute this guaranty on behalf of the
corporation, and that there is no provision in its charter or bylaws that in any
way conflicts with or prevents the execution, delivery or performance of this
guaranty by Guarantor. Guarantor further represents that there is no provision
of any other agreement by which Guarantor is bound that in any way conflicts
with or prevents the execution, delivery or performance of this guaranty by
Guarantor.
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IN WITNESS WHEREOF, Guarantor has executed, sealed and delivered this
guaranty, all this 16th day of September, 1996.
INDIVIDUAL
**Signed, sealed and delivered in the /s/ Xxxxxxx X. Xxxxxx (SEAL)
------------------------
presence of:
Name: Xxxxxxx X. Xxxxxx
----------------------------
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Unofficial Witness Address: 000 XxXxxxxx Xxx
-------------------------
Xxxxxxxx, XX 00000
-----------------------------------
/s/ Xxxxx Xxxxx
----------------------------------------
Notary Public
-----------------------------------
My Commission Expires:
Notary Public, Gwinnett County, Georgia
My Commission Expires March 9, 1999
----------------------------------------
(NOTARIAL SEAL)
**SIGNATURE IS TO BE WITNESSED BY AN INDIVIDUAL (AS UNOFFICIAL WITNESS) AND BY A
NOTARY PUBLIC WHO SHOULD AFFIX HIS OR HER NOTARIAL SEAL AND INDICATE THE
EXPIRATION DATE OF HIS OR HER COMMISSION BELOW THE SIGNATURE LINE
41
